REVIEW OF RIGHT TO WATER: HUMAN RIGHTS, STATE LEGISLATION ... · REVIEW OF RIGHT TO WATER: HUMAN RIGHTS, STATE LEGISLATION, AND CIVIL ... UDHR : Universal Declaration of Human Rights

Review of Right to Water 1

REVIEW OF RIGHT TO WATER: HUMANRIGHTS, STATE LEGISLATION, AND CIVIL

SOCIETY INITIATIVES IN INDIA

Priya Sangameswaran

CISEDCISEDCISEDCISEDCISEDCentre for Interdisciplinary Studies in Environment & DevelopmentCentre for Interdisciplinary Studies in Environment & DevelopmentCentre for Interdisciplinary Studies in Environment & DevelopmentCentre for Interdisciplinary Studies in Environment & DevelopmentCentre for Interdisciplinary Studies in Environment & Development

TechnicalReport

January 2007

REVIEW OF RIGHT TO WATER:HUMAN RIGHTS, STATE

LEGISLATION, AND CIVILSOCIETY INITIATIVES IN INDIA

Priya Sangameswaran

Centre for Interdisciplinary Studies in Environment & DevelopmentCentre for Interdisciplinary Studies in Environment & DevelopmentCentre for Interdisciplinary Studies in Environment & DevelopmentCentre for Interdisciplinary Studies in Environment & DevelopmentCentre for Interdisciplinary Studies in Environment & DevelopmentA Centre of Excellence promoted by the Institute for Social and Economic Change

ISEC Campus, Nagarabhavi, Bangalore - 560 072, India.

www.cised.orgJanuary 2007

The material in this publication may be used for any purpose (such as teaching or research) as long as it isnot-for-profit and the source is acknowledged.

Review of Right to Water

TABLE OF CONTENTS

ACKNOWLEDGEMENTS .............................................................................................. iii

LIST OF ACRONYMS .................................................................................................. v

SUMMARY ................................................................................................................ viiCHAPTER 1 : INTRODUCTION ...................................................................................... 1

1.1 INTRODUCTION TO THE STUDY....................................................................... 1

1.2 A BRIEF DISCUSSION OF RIGHTS.................................................................... 2

1.3 WHY WATER? ............................................................................................... 31.4 METHODOLOGY AND PLAN OF CHAPTERS ........................................................ 5

1.5 CONCLUSION ............................................................................................... 6

CHAPTER 2 : RIGHTS-BASED CONCEPTS: A BRIEF REVIEW ............................................ 7

2.1 INTRODUCTION TO RIGHTS ............................................................................ 72.2 HUMAN RIGHTS ............................................................................................ 7

2.2.1 Introduction .............................................................................................. 7

2.2.2 Evolution of human rights at the international level ........................................ 8

2.2.3 Debates about human rights ..................................................................... 102.3 RIGHT TO WATER ........................................................................................ 12

2.4 RIGHT TO DEVELOPMENT ............................................................................. 13

2.5 RIGHTS-BASED APPROACH TO DEVELOPMENT................................................ 13

2.6 WATER RIGHTS ........................................................................................... 152.7 CAPABILITIES, ENTITLEMENTS AND RIGHTS ................................................... 17

2.8 CONCLUSION ............................................................................................. 18

CHAPTER 3 : CONTOURS OF A RIGHT TO WATER .......................................................... 203.1 INTRODUCTION .......................................................................................... 20

3.2 SCOPE OF THE RIGHT TO WATER .................................................................. 21

3.3 DUTIES/RESPONSIBILITIES IMPLIED BY THE RIGHT ........................................ 22

3.4 OWNERSHIP OF WATER ............................................................................... 243.5 DELIVERY OF WATER SERVICES .................................................................... 27

3.6 PRICING OF WATER .................................................................................... 30

3.7 PARTICIPATION .......................................................................................... 32

3.8 RELATION OF RIGHT TO WATER TO OTHER RIGHTS AND VISION OFDEVELOPMENT ........................................................................................... 32

3.9 GLOBALIZATION AND RIGHT TO WATER ......................................................... 33

3.10 CONCLUSION ............................................................................................. 36

CHAPTER 4 : RIGHT TO WATER AT THE INTERNATIONAL LEVEL AND IN INDIA .................. 374.1 INTRODUCTION .......................................................................................... 37

4.2 WATER DISCOURSES AT THE INTERNATIONAL LEVEL....................................... 37

4.3 RIGHT TO WATER AT THE INTERNATIONAL LEVEL ............................................ 38

4.4 RIGHT TO WATER IN THE INDIAN CONTEXT: AN INTRODUCTION ....................... 414.4.1 Human rights in India .............................................................................. 42

4.4.2 General water situation in India ................................................................. 44

4.4.2.1 Drinking water situation .................................................................. 44

4.4.2.2 Irrigation ........................................................................................ 454.5 CONSTITUTIONAL STATUS OF RIGHT TO WATER IN INDIA ................................ 46

4.6 CONTOURS OF A RIGHT TO WATER ............................................................... 47

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4.6.1 Ownership of water .................................................................................. 48

4.6.2 Scope of right to water ............................................................................. 49

4.6.3 Duties/Responsibilities implied by the right .................................................. 50

4.6.4 Delivery of water ..................................................................................... 504.6.5 Pricing .................................................................................................... 52

4.6.6 Relation of right to water to other rights and vision of development ................ 53

4.6.7 Participation ............................................................................................ 54

4.6.8 Non-water legislation ............................................................................... 544.7 CONCLUSION ............................................................................................. 55

CHAPTER 5 : RIGHT TO WATER IN MAHARASHTRA ........................................................ 56

5.1 INTRODUCTION .......................................................................................... 56

5.2 WHY MAHARASHTRA? .................................................................................. 565.3 GENERAL WATER SITUATION ........................................................................ 57

5.4 DIMENSIONS OF RIGHT TO WATER IN MAHARASHTRA ..................................... 59

5.4.1 Ownership of water .................................................................................. 60

5.4.2 Scope of right to water ............................................................................. 615.4.3 Duties/Responsibilities implied by the right .................................................. 62

5.4.4 Delivery of water ..................................................................................... 63

5.4.5 Pricing .................................................................................................... 65

5.4.6 Right to water and vision of development .................................................... 675.4.7 Participation ............................................................................................ 68

5.5 CONCLUSION ............................................................................................. 69

CHAPTER 6 : CIVIL SOCIETY INITIATIVES AND RIGHT TO WATER ................................... 706.1 INTRODUCTION .......................................................................................... 70

6.2 HUMAN RIGHTS MOVEMENTS IN INDIA .......................................................... 70

6.3 CIVIL SOCIETY INITIATIVES IN WATER IN INDIA ............................................. 71

6.3.1 Anti-Coke struggles at Plachimada in Kerala ................................................ 736.3.2 Agitations against the privatization of the river Sheonath .............................. 76

6.4 CIVIL SOCIETY INITIATIVES IN WATER IN MAHARASHTRA ................................ 77

6.5 CONCLUSION ............................................................................................. 80

CHAPTER 7 : CONCLUSION ....................................................................................... 817.1 INTRODUCTION .......................................................................................... 81

7.2 MEANING OF RIGHTS ................................................................................... 81

7.3 DIMENSIONS OF A RIGHT TO WATER ............................................................. 82

7.4 STATE LEGISLATION AND RIGHT TO WATER .................................................... 837.5 CIVIL SOCIETY INITIATIVES AND RIGHT TO WATER ......................................... 84

7.6 CONCLUSION ............................................................................................. 85

BIBLIOGRAPHY ....................................................................................................... 87

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Review of Right to WaterReview of Right to Water

ACKNOWLEDGEMENTS

My interest in water was kindled as a graduatestudent in the Economics Department at theUniversity of Massachusetts Amherst,particularly in my interactions with Prof. JamesK. Boyce, with whom I eventually worked formy Ph.D. dissertation, and whose intellectualand moral support has been invaluable sincethen. The dissertation – focusing on thequestion of equity in community-basedsustainable development projects in WesternIndia – was my first effort in analyzing questionsabout social justice and equity in the specificcontext of water. This review is the secondeffort in that direction and as such drawsheavily on the ideas and experiences gainedduring the dissertation process, both from myadvisor and other dissertation committeemembers (J. Mohan Rao, Amrita Basu andSrirupa Roy) as well as from the numerousindividuals and organizations whom I met inthe course of field work.

While the idea for this review emerged in thecourse of a conversation with James Boyce inthe last stages of my Ph.D., the research andthe writing for it was done in the course of aVisiting Fellowship at the Centre forInterdisciplinary Studies in Environment andDevelopment (CISED), Bangalore. I would like

to thank Sharad, Shrini, Ganesh, Anand, Vartika,Praveen, Santosh, Ishwaragouda, Rajeev,Jayasree, and others at the Centre, as alsoEsha and Jwala (formerly at CISED) and Suren(of Sampoorna Kranti Vidyalaya) for intellectualstimulation and support along various fronts.Many thanks to Ajit Menon and M.V.Ramana(at CISED), Suhas Paranjape (of SOPPECOM),M. Roopa, (at the International EnvironmentLaw Research Centre in New Delhi) and ShineyVerghese (at the Institute for Agriculture andTrade Policy, USA) for comments on a previousdraft of this review. I would like to extendspecial thanks to Ajit for encouragement at anumber of points in the course of the reviewand for drawing attention to the biggertheoretical questions that underlie theexercise. Thanks also to our editing and designteam, viz., M. V. Ramana, Lina Krishnan andGirish Bhadri. Last, but not the least, is theintellectual debt to the numerous individuals(whether in academia or activism) whose workon rights, equity, and water have motivatedthis review and made it an enjoyable andlearning experience.

Priya SangameswaranJanuary 2007

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Review of Right to WaterReview of Right to Water

LIST OF ACRONYMSCAT : Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment

CEDAW : Convention for Elimination of Discrimination Against Women

CRC : Convention on the Rights of the Child

GATS : General Agreement on Trade in Services

GATT : General Agreement on Trade and Tariffs

GWP : Global Water Partnership

HCBL : Hindustan Coca-Cola Beverages Ltd.

ICCPR : International Covenant on Civil and Political Rights

ICERD : International Convention on the Elimination of All Forms of RacialDiscrimination

ICESCR : International Covenant on Economic, Social and Cultural Rights

IWRM : Integrated Water Resource Management

MMISFA : Maharashtra Management of Irrigation Systems by Farmers Act

MSWP : Maharashtra State Water Policy

MWRRA : Maharashtra Water Resources Regulatory Authority Act

NWP : National Water Policy

PIL : Public Interest Litigation

PIM : Participatory Irrigation Management

PRIs : Panchayati Raj Institutions

RBA : Rights-based Approach

SOPPECOM : Society for Promoting Participative Ecosystem Management

TAC : Technical Advisory Committee

UDHR : Universal Declaration of Human Rights

UNCHR : United Nations Commission on Human Rights

UNDP : United Nations Development Programme

WTO : World Trade Organization

WUA : Water Users’ Association

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SUMMARY

This study is basically a desk-top review ofthe rights discourse in the context of water,based on academic and popular literature onrights and civil society initiatives as well asgovernment documents regarding water andrelated subjects. The study has two broadmotivations. Firstly, engagement with the ideaof rights (and the right to water) helps to bringquestions of social justice and equity to theforefront. Secondly, a study linking rights andwater provides a bridge between differentdiscourses (economics, legal pluralism,development studies, human rights, naturalresource management) and different groups ofactors (lawyers and activists dealing withhuman rights, social scientists dealing with thequestion of ‘development’), thereby opening uppossibilities of synergies between them.

There are four parts to the study. The firstpart reviews the different rights-basedconcepts which are relevant to water: humanrights, right to water, water rights, right todevelopment, rights-based approach todevelopment, and entitlements. This helps toclarify the distinctions between these differentconcepts and to understand what is at stakein each of them – for instance, for the role ofthe state, as well as for different dimensionsof a right to water. Further, the debates thatare found in different versions of rights, be ithuman rights or rights-based approaches or theright to development (the relative importanceof legal versus non-legal aspects, the role ofthe state, the implications of power inequalitiesat various levels) are relevant to issues of watertoo. Rights could also be a useful strategicinstrument, especially in negotiations withgovernments and donors. However, one mustbear in mind the pitfalls of using over-simplifiedversions of rights. Finally, the discussion ofrights, entitlements, and endowments gives atheoretical foundation for linking a rights-basedframework to equity.

The second part clarifies the content of theright to water by unpacking its differentdimensions. The different possible dimensions

of the right to water include the precise natureof the rights/entitlements, the unit to whichthe right should be assigned, what kind of needsshould be considered within the ambit of theright (drinking, household needs, livelihoodrequirements), the quantity and qualityrequirements for each of these, questions ofaccessibility and affordability of water, theresponsibilities of the state and of right-holders,ownership of water resources, the kind ofsystem put in place for water delivery, pricingof water, participation, the relation of the rightto water to other rights such as right to housingor right to development, and the impact ofglobalization on various aspects of the right towater. This discussion brings out the inter-connections between different dimensions andre-enforces the fact that even defining a rightto water is complex and context-specific (letalone realizing it).

The third part discusses the extent to whichlegislation and policies at different levelssupport various elements of the right to water.While there are a number of different discoursesat the international level that have influencedwater, the right to water has been most oftendiscussed in the human rights literature. Whilethere is support for such a right, the mostimportant statement to date – the GeneralComment 15 of the United Nations, leaves alot of issues undefined. At the India-level, thelegal status of ‘right to water’ is discussed byfocusing on constitutional support for the rightto water, followed by an analysis of how thecontours of such a right are actually shapedby water-related policies, legislation, and judicialjudgments. But while a basis for a right to waterhas been found in the Indian constitution undera fundamental right viz., right to life, neitherthe judiciary, nor the government has engagedwith the General Comment in particular, or thehuman rights discourse in general (at least inthe context of a right to water), which, in turn,is an indication of the hegemony of other waterdiscourses. The specific discussion of differentdimensions of water shows, on the whole, that

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from the point of view of a meaningful right towater, there are several lacunae in central-level policies and legislation, particularly in theform that current changes in the irrigation anddrinking water sector have taken. This resultsin limitations in the working of the right to waterat the state level. Further, the division of laborbetween the centre and the state means thatsome of the recommendations made by thecentre are non-statutory in nature, and notnecessarily followed by the state governments.

While there is some recognition of right towater in international human rights as well asin the Indian constitution, at the level of statelegislation and policies in India, differentdimensions of right to water do not get muchsupport. This is true even of cases likeMaharashtra, where a particular version ofrights (viz., entitlements to water) has beenput forward in the context of ParticipatoryIrrigation Management. On the one hand, therecent reforms undertaken in the realm ofMaharashtra indicate the influence thatcentral-level policies and legislation have onthe states, even though water is technicallya state subject. On the other hand, while the

changes in Maharashtra have potential inincreasing the rights of some groups (likeWUAs), the nature of these rights are limited;in fact, they are more in line with a narrow,tradable permits version of water rights.

The fourth part discusses the kind of civilsociety initiatives being undertaken in water,including differences in the actors involved, theparticular dimensions of water that they dealwith, and the strategies they adopt. Two casesat the India-level – the anti-Coke struggles atPlachimada in Kerala and the agitations againstthe privatization of the Sheonath river inChhatisgarh, are discussed in some detail, alongwith civil society initiatives in water in thespecific case of Maharashtra. These initiativeshave engaged with more dimensions of the rightthan the human rights discourse and statelegislation. For instance, the idea of water forlivelihoods and the relation between water anddevelopment has been an important part of atleast some of these struggles. But moreimportantly, the use of rights language andefforts to engage with the state indicate thepotential for synergies between differentdomains.

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CHAPTER 1

INTRODUCTION

1.1 INTRODUCTION TO THE STUDY

The discourse of development (that is, bothits practice as well as ways of speaking andthinking about it) has seen a wide variety ofchanges since it came into focus in the post-World War II period. For instance, the last twodecades of the twentieth century have seenemphasis on dimensions such as participation,sustainable development, empowerment,governance, social capital, and respect forindigenous knowledge. New dimensions havebeen added primarily in response to critiquesof development and demands by thedisaffected, and many of these responses havein turn become the subject of further critiques(Kamat, 2002). One dimension that has becomethe object of much interest since the 1990sand to date is the concept of rights. How longthis interest will last and whether the rightsdiscourse has anything new to contribute tothe analysis of particular issues has been amatter of some contention. But even while thedebate about rights continues, the conceptcontinues to be extended to a variety of realmssuch as development and environment, asevinced by the institution of new rights suchas the right to development and environmentalrights.

As a resource that is relevant to concerns aboutboth development and environment, the domainof water has also seen discussions of differentkinds of rights such as (human) right to water,water rights, and rights-based approach towater. In the international realm, for instance,the United Nations Committee for Economic,Social and Cultural Rights adopted the GeneralComment (No.15) on the right to water in 2002.The idea of water as a right (as against wateras a need) has been a contentious issue in thetriennial World Water Forums. Civil societyinitiatives and social movements have used thelanguage of ‘right to water’ to resist attemptsat privatization of water services (for instance,in Latin America), and in struggles against amode of industrial development that pays littleattention to the water needs for drinking and

agriculture (such as the anti-Coke struggles inIndia). At the level of national legislation also,a formal right to water can be implicitly orexplicitly found in many constitutions, althoughthe version of rights found in enabling laws isoften more commensurate with a neo-liberalversion of marketable water permits than witha fundamental right to water stemming fromany notion of human dignity.

Given the centrality of both rights discoursesand water to our times, this study reviews rightsdiscourses in the context of water, drawing ondiscussions in the domains of human rights,state legislation and civil society initiatives,with the following four aims:

1. To bring about greater conceptual clarityabout the meaning of ‘rights’, especially inthe context of water;

2. To unpack different dimensions of a ‘rightto water’;

3. To discuss the extent to which legislationand policies at different levels supportvarious elements of the right to water and

4. To discuss how civil society initiativesengage with different elements of the rightto water.

Undertaking such an exercise is useful for tworeasons. Firstly, engagement with the idea ofrights (and the right to water) helps to bringquestions of (redistributive) social justice andequity to the forefront, especially in an erawhen such concerns increasingly seem to beput on the backburner. Equity (however defined)is an important element of a society whereeveryone can develop to his or her full potential.Jain (2002) goes so far as to say that thelanguage of rights is replacing development,because (mainstream) development has notbeen able to engineer change with equity andjustice. For instance, in the realm of water,the process of reform in urban areas often endsup focusing on increasing tariffs to recoveroperation and management costs, while anequally (if not more) important question to ask

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might be why poorer communities should payfor improved infrastructure for a city watersupply (WaterAid, 2005). The idea of right towater could help emphasize this equitydimension. In general, since right to water onthe ground is determined by an intersection ofgender, caste, and class (Ahmed, 2005a),engagement with the idea of right to waterhas the potential to question hierarchies basedon these dimensions.

Secondly, a study linking rights and waterprovides a bridge between different discourses(economics, legal pluralism, developmentstudies, human rights, natural resourcemanagement) and different groups of actors(lawyers and activists dealing with humanrights, social scientists dealing with thequestion of ‘development’), thereby openingup possibilities of synergies between them. Forinstance, usually the environment and ourrelationship to it are not considered to be ahuman rights issue. The result is that denialof human rights due to environmentalcontamination or lack of provision toparticipate in decision-making onenvironmentally sensitive works ends up beingaddressed through mechanisms that do nothave a human rights framework as a guide,and are therefore treated with a lower set ofstandards and priorities than would be humanrights concerns (Picolotti and Taillant, 2003).The right to water (especially when it includeswater for the natural environment) could helpenvironmentalists and human rights advocatesto communicate with each other. Similarly, therights-based approach to development helpsto link human rights and development byintegrating familiar concepts such asparticipation, accountability, and transparencywith less familiar ones such as explicitreference to government obligations derivingfrom international human rights law andprocedures.

With this brief justification for undertaking areview of rights in the context of water, I willintroduce the two key concepts – rights andwater – that form the heart of this review andthen outline the plan of the report.

1.2 A BRIEF DISCUSSION OF RIGHTS

The concept of rights has a long history ofusage, ranging from philosophical discussionsabout social justice and equity to politicalscience concepts about what freedoms andduties entail, as well as to actual usage instruggles such as anti-colonial struggles. Giventhe wide variety of usages, it is not surprisingthat there are many versions of rights, all ofwhich have different implications.

Consider, for instance, the following definitionsof rights:

“Rights are just claims or entitlements thatderive from moral and/or legal rules” (Freeman,2002: 6).

“A (subjective)1 right refers to a moral

relationship between a person or a group ofpersons and a thing or action or state of affairs”(Edmundson, 2004).

“‘Rights’ are entitlements backed by thecoercive apparatus of the state, whereas‘claims’ are more social in nature and may notbe expressed as legal entitlements” (Wilson andMitchell, 2003).

Even a cursory reflection of just these threedefinitions is enough to bring out a number ofdifferences among them. One is the basis ofthe rights – whether they are so-called onlywhen they derive from law, or also when theyderive from moral rules, without any legalsupport. This, in turn, implies differing roles forthe state. Implicit in at least one of thedefinitions is also a notion of justice andfairness, although what constitutes ‘justice’ or‘fairness’ would need further discussion. Thisrange of meanings that rights can take on isan important reason why they have come tobe widely used, including by people all acrossthe political spectrum.

Edmundson (2004) distinguishes between twoperiods in history when ‘rights’ talk was widelyprevalent. The first was the period of theEnlightenment (that is, the early seventeenthto eighteenth century), when both the Churchand the ancient Greek authorities began to bequestioned and a new, anti-dogmatic, and

1 Note that ‘subjective’ here only refers to a focus on the ‘right-holder’ and not something that is in the eye of the beholder(Edmundson, 2004). Edmundson distinguishes a subjective right from an objective right, which is a global moral evaluation of astate of affairs. It is the former sense in which rights are used when referring to ‘right to….’, and it is this that will form thefocus of this study.


inquisitive approach to the study of nature wasapplied to human affairs The second is the periodfrom 1948, when the Universal Declaration ofHuman Rights was put forth, to date. Evenwithin this second period, it is the period sincethe 1990s that has seen a particularproliferation of rights talk. The motivations forthis new interest are almost as varied as thedifferent versions of rights used. But one candistinguish between three strands of discussionin the modern day rights discourse; one involvesthe concept of human rights, the secondinvolves rights-based approaches, and the thirdstrand includes applications and extensions ofSen’s idea of endowments and entitlements.While the last strand is often found in academicwork, the first two strands are usually found indiscussions of international and nationaldevelopment agencies, donor discourses,governments, civil society groups, and socialmovements. These different strands will beanalyzed in greater detail in Chapter 2. But thequestions raised by the various definitions ofrights – the importance of legal versus non-legal aspects, the role of the state, differingnotions of equity and justice – findreverberation in the discussion of these threestrands too. As mentioned in the previoussection, one of the major motivations forundertaking this study is to bring questions ofequity and justice to the forefront. While thesequestions are implicitly or explicitly present inthe discourses on rights at least to someextent, a clear articulation of a vision of socialjustice is important. It is far beyond the scopeof this study to review the different visionsthat have been put forward, but in theconcluding chapter, I will go back to thisquestion and see what a rights-based approachin water has to offer in terms of a vision ofsocial justice and equity.

1.3 WHY WATER?

As previously indicated, rights discourses havebeen applied to a variety of domains. Similarly,the goals of equity and social justice can alsobe met via a number of routes. This reviewfocuses on the application of the concept ofrights to water, and also implicitly on whethera right to water can serve as the means ofimproving equity in a society.

The choice of water is motivated by a numberof factors. The first is its importance insatisfying basic household needs (drinking,

cooking, washing, and so on) as well aseconomic needs. This is particularly becausewater has multiplier effects on both agriculturaland non-agricultural activities; in fact, inagriculture, water is not just another input,but a necessary means of production withoutwhich primary production is impossible. Ideally,one should focus on all uses of water together(one example of this would be the approachbased on the concept of integrated waterresource management). However, while this isuseful when one thinks of management of waterat macro levels such as the river basin, in termsof thinking about the right to water itself, it ismore useful to make a distinction betweendifferent kinds of functions. This study will focuson drinking water use of water (though thedimension of sanitation is not discussed in detail)and irrigation (particularly participatory irrigationmanagement).

Secondly, water is also critical in maintainingecological balances; sustainability of watersupplies is important for sustainability of theecosystem. Thirdly, control over water alsohelps to determine social and political powerat all levels (and vice-versa). For instance,when the Bangladeshi NGO Proshika helpedlandless groups to obtain water rights in the1980s and sell the water to landowners, notonly did the economic condition of the landlessimprove, but they also began to enjoy bettersocial and political status, as well as increasedleverage and bargaining power in other arenassuch as informal credit, grazing rights, andwages (Wood et al., 1990). Hence access towater as well as to the decision-making processabout water can become an important meansof redressing both class-based and gender-based inequalities. This has led to water servingas the basis for redistributive social and politicalmovements (albeit generally to a lesser extentthan land).

The first two factors are fairly obvious, butthe third factor (particularly whether water canserve as a redistributive device) is a little morecontroversial. What constitutes equity in waterdistribution itself is a subjective question. Anumber of different options have been putforward with respect to water rights – equalvolumes, equal watering times, water rightsproportionate to contribution made or land area,and prior appropriation (whoever first exploitsa resource establishes a right to continue todo so) (Chambers, 1988). Further, these criteria


of equity could be applied across differentgroups (large and small farmers, landed andlandless, head-end and tail-end farms). Whenone goes beyond the question of just equity inwater and tries to address the question of howto use water to achieve equity or social justicein general, the situation gets more complicated;in fact, attempts to address inequities inresource rights by allocating water rights equallyamong all landholders, tenants, and landlesspeople have usually had limited success (see,for instance, SOPPECOM, 2002; van Etten,2002). But irrespective of how the use of wateras a redistributive device works out in practice,the existence of such a possibility is one ofthe motivations for a study on the issue ofright to water.

Apart from the theoretical reasons to focus onwater, there is also the fact that water hascome into a great deal of focus in recent times.One reason for this is the importance of theUN Millennium Development Goals,

2 one of which

has the target of halving the proportion ofpeople without sustainable access to safedrinking water by 2015. Another reason is theperception of a looming or already existing watercrisis. There are differences of opinion aboutwhether a crisis rhetoric is appropriate in thecontext of water. For instance, Mehta (2000)argues that scarcity is often manufactured byanthropogenic interventions or discursiveconstructions, and not real in the sense ofhaving biophysical or social manifestations. Infact, crisis narratives often have their roots inneo-Malthusian perspectives concerningenvironment and development. The implicationof the idea that scarcity of water is a createdconcept and that droughts are not ‘natural’disasters means that the argument that auniversal ‘right to water’ is not feasible becausethere is not enough water to go around is nottenable. Similarly, Petrella (2000) (cited inMehta, 2000) argues that many international,national, and regional conflicts ostensibly overwater are caused by other factors such asethnic rivalries, nationalism, and power politicsthat extend to the cultural, political, andeconomic spheres. This point is importantbecause the management of water resourceshas been reduced to crisis management – of

floods, droughts, and inter-state disputes(Anonymous, 2002b), instead of consideringthese events as symptoms of deeper problems.But even as one problematizes the crisisrhetoric, what one can agree upon is that a lotof people do not have access to water, andthat while the water issues being faced todayare not novel, the scale of the problem is new.

The context of globalization has also led to anincreased focus on water. While the preciseimpact of globalization on policies and legislationat the international, national, and state levelsbecomes more evident in the discussion inChapters 4 and 5, there are two broad ways inwhich globalization has led to an increasedfocus on water. Firstly, there is increasedcorporate attention to water, because it is nowa resource that is perceived to offeropportunities for profit-making. In fact, theclose alliance between governments, the WorldBank, the United Nations, and water companiesoften gives corporations the power to shapegovernment policies (like deregulation and freetrade, and favored access to upcoming watercontracts) in ways that favor their interests(Barlow, 2001). Secondly, movements againstglobalization have also begun to focus on theincreased commodification of water (viz., theeffort to move water from the public to theprivate domain and to define it as an economicgood). For instance, Latin Americans haveprotested against the increased water chargesresulting from the handing over of public waterutilities to foreign companies.

The above discussion offers justification forfocusing on water. However, any study of wateris complicated by the fact that water hasmultiple facets. Water is divergently perceivedas life support, basic right, common poolresource, economic good, property of the state,cultural symbol, and so on. While no single studycan claim to do justice to all of these aspects,it is important to keep this factor in mind,because many of the divergent prescriptionsaround water problems (such as community-management, legal clarification of propertyrights, water markets, state control) arisebecause people focus on particular aspects tothe exclusion of others (Iyer, 2005a). At theinternational level, for instance, Mehta (2004)

2 MDGs are a set of wide-ranging development goals to be achieved by 2015 which were adopted by the Millennium Assembly ofthe United Nations in 2000.


points out how problems and necessarysolutions in the water sector are presentedvery differently in the several globalassessments with different assumptions aboutcosts, technology inputs, and even the goalsthemselves. Similarly, public and privatesystems often coexist side by side, and ruraland urban people make opportunistic choicesbetween different types of water provisioning,dependent on a variety of choices that maynot seem entirely rational to outsiders (Mehta,2004). The discussion of a human right to wateris also often mixed up with arguments overprivate versus public services and pro- and anti-commodification of water (Newborne, 2004).

1.4 METHODOLOGY AND PLAN OFCHAPTERS

This study is basically a desk-top review, basedon academic and popular literature on rightsand civil society initiatives as well asgovernment documents regarding water andrelated subjects. However, field work done inthe course of a previous study(Sangameswaran, 2005) – particularlyinterviews with NGOs working on issues of waterin Maharashtra – does feed into it, especiallyin the discussion of the conceptualization ofwater rights in state legislation in Maharashtra(Chapter 5) and in civil society initiatives inwater (Chapter 6).

Chapter 2 offers a more detailed discussion ofdifferent kinds of rights, especially insofar asthe context of water is concerned. The questionof access to water and equity in distribution ofwater has been a part of the developmentliterature for a long time. In the environmentalliterature, the question of quality of water hasreceived emphasis. But in formal terms, thequestion of the right to water has beendiscussed most in the human rights literature.Hence a large part of the discussion in thischapter focuses on human rights.

Chapter 3 discusses the various elements thatshould be a part of any discussion of right towater, drawing from the critiques of humanrights. While it is not possible to understandwhat water rights and water management formsare and how they function in isolation from theactual political and social context in which theyare used and discussed (Boelens andZwarteveen, 2005), there is also a need to laydown certain common norms (either as minimum

requirements or as providing the normativevision). Right to water is not just about accessto water, or even to adequate, safe water.The different possible dimensions to the rightto water include the precise nature of the rights/entitlements, the unit to which the right shouldbe assigned, what kind of needs should beconsidered within the ambit of the right(drinking, household needs, livelihoodrequirements), the quantity and qualityrequirements for each of these, questions ofaccessibility and affordability of water, theresponsibilities of the state and of right-holders,ownership of water resources, the kind ofsystem put in place for water delivery, pricingof water, and the relation of the right to waterto other rights such as right to housing or rightto development.

The discussion of these elements brings outsome of the issues raised in the debates abouthuman rights, but also raises some concernsthat are specific to the nature of water.Further, not only is each of these dimensionscomplex and context-specific, but there arealso inter-connections between them. Forinstance, fifty percent of the urban slumpopulation in India do not have adequateaccess to safe water (WaterAid, 2005). Theissue of coverage for slum populations inurban areas is linked to the tenure status oflarge floating populations and settlements(authorized versus unauthorized, legal versusillegal). That is to say, one has to bring inthe question of how access to water is linkedto access to housing, as well as one’s politicalstatus (in terms of citizenship) and ability toprove domicile (possession of documents likea ration card). One also has to deal with thepower dynamics of the informal waterproviders who would lose out if slum-dwellerswere given access to water. The lack ofcoverage is also l inked to poor anddisadvantaged people being excluded fromparticipation in decision-making on waterissues, a point which becomes especiallyimportant in the context of protests aboutwater privatization by the middle-class, whichdo not necessarily focus on water for slums.The inter-connections between differentdimensions make the realization of right towater even more difficult; further, though anyparticular actor might need to focus onspecific aspects, complementarity betweenthem is needed.


The evolution of the right to water at theinternational level will be discussed in Chapter4, along with a discussion of the constitutionalsupport that the right to water has at the Indialevel, and how legislation and policies at thecentral level (including court decisionspertaining to water) affect the formulation ofright to water in different states. While thepresence of suitable policies and legislation isno guarantee that the right to water is met forall, they constitute an important arena in whichdifferent elements of the right are shaped. Thisdiscussion also sets the scene for morenuanced, context-specific analysis.

In Chapter 5, I discuss the case of a specificstate – Maharashtra – concentrating on thewater policy in the post-independence period(especially with respect to participatoryirrigation management). The case is interestingbecause Maharashtra is one of the states thathave been at the forefront of giving greaterrights to communities of water users; in fact,it has explicitly used the language ofentitlements (which can be regarded as aparticular form of rights). But there arelimitations in the way entitlements have beenconceived as well as in the broader policycontext within which these entitlements aresituated.

The renewed focus on water is not restrictedjust to the domain of human rights and statelegislation. Civil society initiatives of different

kinds have also engaged with the right to water.Freeman (2002) points out that the relationbetween social movements and rights isdialectical in that movements seek rights, andrights empower movements. In fact, the statemay also have an interest in buying legitimacyby granting concessions in the form of rights.How various civil society initiatives haveengaged with the right to water will form thesubject of Chapter 6. I briefly discuss two India-level cases – the Anti-Coke struggles atPlachimada in Kerala and the agitations againstthe privatization of the river Sheonath inChhattisgarh, and then turn to civil societyinitiatives in water in Maharashtra.

Chapter 7 summarizes the insights from thepreceding chapters and indicates some waysforward.

1.5 CONCLUSION

This introductory chapter describes the aimsof the report and the rationale for undertakinga review of the right to water. Irrespectiveof whether or not a formal, explicit right towater is formulated at the international ornational level, the study hopes that thinkingthrough these questions would help to flagthe range of issues that have to be dealtwith in more specific contexts, and theimportance of complementary action andsynergies in the interventions to be made bydifferent actors.


CHAPTER 2

RIGHTS-BASED CONCEPTS:A BRIEF REVIEW

2.1 INTRODUCTION TO RIGHTS

This chapter reviews the different rights-basedconcepts which are relevant to water – humanrights, right to water, water rights, right todevelopment, rights-based approach todevelopment, and entitlements. The aim is toclarify the distinctions between these differentconcepts and to understand what is at stakein each of them – for instance, for the role ofthe state, as well as for different dimensionsof a right to water.

Since a major focus of this review is on theright to water, and human rights constitutean important discourse in which this has beenput forth, both of these are particularlyrelevant to the current study. While I considerhuman rights in this chapter, the concept ofright to water will only be briefly introducedhere and discussed in greater detail in Chapter3. Although right to development is a (non-binding) human right, and rights-basedapproaches to development are also relatedto human rights, their relation with each otherand with water is interesting, and thereforethey are considered separately. The conceptof water rights, which is often conflated withthe right to water, is then unpacked; amongother things, this serves to problematize thequestion of ownership of water. Finally, therelation of ‘entitlements’ with ‘rights’ is brieflydiscussed. The term ‘entitlement’ is often usedin rights discourse, sometimes as a substitutefor rights (e.g., when a water entitlement isused to refer to a water right), sometimes asa subset of rights (when positive rights arereferred to as entitlements in contrast tonegative rights or claims),

3 and sometimes in

the sense that Sen used it (where entitlementsresult in capabilities).

2.2 HUMAN RIGHTS

2.2.1 Introduction

The kind of rights that have received thegreatest amount of attention in recent timesare human rights. The efforts to ensure anexplicit ‘right to water’ as well as rights-basedapproaches to development are both oftenarticulated in the context of human rights. Whilethere are a number of theoretical and practicalproblems with human rights, many of thedebates in the context of human rights offeruseful insights in terms of deciding whetherthe idea of a ‘right to water’ (irrespective ofwhether it is formally recognized as a humanright or not), as well as a rights-based approach(in water specifically and in development ingeneral), are both viable and useful, especiallyfrom the point of view of equity. Hence it isuseful to undertake a brief review of humanrights.

The immediate origin of the current regime ofhuman rights can be traced to the Declarationof Human Rights in 1948 by the United Nations,although its history goes back much further. Inthe Western world, for instance, one precursorto the present form of ‘human rights’ can befound in discussions of ‘natural rights’ in Locke,wherein every human being has certain rightsthat derive from their nature and not from theirgovernment or its laws, and the legitimacy ofgovernment rested on the respect that itaccorded to these rights (Freeman, 2002).

Both the origin of human rights as well as thehistory of emergence of their current regime iscontroversial. For instance, there is the questionof whether human rights depend on any priortheory of ‘divine’, ‘moral’ or ‘natural’. Similarly,many of the historical moments deemedimportant in the emergence of human rightssuch as the addition of the Bill of Rights to the

3 Legally, in positive rights, there is an obligation on the state (or on whom the corresponding duty falls) to do something tofacilitate the enjoyment of the right; in the case of negative rights, there is an obligation to refrain from doing anything whichcould come in the way of enjoyment of the right (Singh, 1992).


American constitution in 1791, are problematicbecause they ignore significant sections of thepopulation (such as American Indians or slaves).This study will not go into the details of thesedebates, but focus instead on the features ofthe current usage of human rights and thedebates that these have provoked (althoughsome of the debates about the origin andhistorical emergence of human rights do leavetheir mark on these other debates). In doingso, the intent is not to disregard the ideologicalbaggage that human rights come with, butrather to think of ways in which to best usethe concept for a specific goal such as equity.

Before turning to the evolution of human rightsat the international level and the major debatesthat have taken place in this realm, I will justbriefly discuss the two broad usages of theterm.

One usage of the term ‘human rights’ holdsthat they stem from human dignity, so thattheir existence is independent of formalrecognition in international or national law (see,for instance, Marks, 2004; Klawitter andQazzaz, 2005). The fact that they existirrespective of any social or institutionalendorsement is, as Gavison (2004) argues, bothits strength and weakness; this also has thelimitation of drawing attention away from thesocial nature of rights. Interpretations of humandignity also vary: it could stem from the basichumanity of persons or from moral standards(as in Gavison, 2004), it could involve a minimumstandard common to all cultures and times oroffer space for differing conceptions. Althoughthe idea of a transcendental and essentialhuman nature as forming the basis for thederivation of human rights has been subject toconsiderable critique in recent times, Chandhoke(1998) argues that dismissing this idea wouldadversely affect both the moral basis of rightsand the political weight ascribed to them.

The second way in which the term ‘human rights’is used (for instance, in Hausermann, 1999) isas those rights that have been recognized bythe global community in the 1948 UniversalDeclaration of Human Rights (UDHR) and insubsequent international legal instruments

binding on states. The main feature of this usageis that it emphasizes the need for formalrecognition, and therefore implicitly on the legalaspects of human rights. Further, even as therelationship between the individual and thestate is emphasized, the concept of humanrights (by granting rights to individuals) limitsstate sovereignty, so that human rights abuseswithin state borders, even when perpetratedby a government against its own people, areno longer matters solely within the purview ofdomestic affairs (Doyle and Gardner, 2004).

These two usages are not mutually exclusive,but drawing them out distinctly serves thepurpose of bringing out important features ofthe way human rights are currently conceived.Further, as we will see in the ensuing discussion,this distinction plays itself out in the contextof the other rights-based concepts also.

A relatively newer strand in the human rightsdiscourse – an anthropological formulation ofhuman rights – stresses human sociality as thefoundation for human rights. This views humanrights as a property of relationships andinterconnections between social persons whoexercise moral agency, rather than aconsequence of the essential capacities ofasocial individuals (the view that is found inconventional liberal accounts) (Wilson andMitchell, 2003).

2.2.2 Evolution of human rights at theinternational level

Human rights received worldwide attentionthrough the United Nations, and in particular,via the 1948 Universal Declaration of HumanRights (UDHR). Although UDHR is not binding onstates,

4 many of its provisions are now

considered to be customary international law,and the broad human rights found there havesince been reasserted in many internationalcovenants, conventions, or agreements.Whatever the philosophical limitations of UDHR,there is no doubt that it has had great legaland political influence. For instance, there arenow two hundred international legal human rightsinstruments, as well as movements of humanrights at the international and national level.

4 A declaration is a statement of basic principles of inalienable human rights and imposes only moral, not legal weight onmembers. Such declarations often either express already existing norms of customary international law or may over timecrystallize into customary norms. Conventions and covenants, on the other hand, are treaties that are legally binding onsignatories.


There are six core human rights treaties(contracts signed by states that are legallybinding) confirmed in international law:

1) International Convention on the Eliminationof All Forms of Racial Discrimination (ICERD),adopted in 1965 and entered into force in1969;

2) International Covenant on Economic, Socialand Cultural Rights (ICESCR), adopted in1966 and entered into force in 1976;

3) International Covenant on Civil and PoliticalRights (ICCPR), also adopted in 1966, andentered into force in 1976;

4) Convention for Elimination of DiscriminationAgainst Women (CEDAW), adopted in 1979and entered into force in 1981;

5) Convention Against Torture and Other Cruel,Inhuman or Degrading Treatment orPunishment (CAT), adopted in 1984 andentered into force in 1987 and

6) Convention on the Rights of the Child (CRC),adopted in 1989 and entered into force in1990.

(Source: Klawitter and Qazzaz, 2005)

These international treaties impose obligationson states and governments to enforce therights of their citizens. However, implementationremains a problem. Although the United NationsCommission on Human Rights (UNCHR)

5

established in 1946 is supposed to monitorhuman rights on a global scale and examineviolations of human rights, the main element ofinternational supervision of the domesticimplementation of treaty obligations is reporting,which has limited usefulness and even this isnot undertaken fully. This has led to thecharacterization of the international humanrights regime as a relatively strong promotionalregime, a relatively weak implementation regimeand not an enforcement regime, which Donnelly(1989) (cited in Freeman, 2002) argues isbecause of the threat that the regime posesto state sovereignty.

In addition, there are also regional conventionssuch as the European Convention on HumanRights in 1983, the American Convention onHuman Rights in 1978, and the African Charter

on Human and People’s Rights in 1983. Thereis, however, no regional convention in Asia(Gleick, 1999).

The details of the emergence, specific contentof various human rights instruments, and theirworking (or lack thereof) have now been widelydocumented (see, for instance, Vijapur andSuresh, 1999). Here I will concentrate on twoimportant features of the rights discourse atthe international level. One relates to thedifferent kinds of rights that have emerged sinceUDHR and the relationship amongst them. Thesecond relates to the emergence since the1990s of what Wilson and Mitchell (2003) call‘rights talk’ in a variety of realms.

Beginning with civil and political rights such asright to free speech and right to association,rights have been extended not only toeconomic, social, and cultural domains (suchas right to health), but also to group rights(ranging from the rights of minority protectionwithin states to rights to national developmentwithin a global order, right to self-determination,and right to environment). For instance, theRight to Development was proposed as a humanright in the early 1970s and accepted by theUN General Assembly’s 1986 Declaration on Rightto Development. These three kinds of rightsare often said to correspond to threegenerations of rights, because of the order inwhich they gained prominence in the humanrights regime. The relationship between the firsttwo sets of rights has been particularlycontroversial, the point of contention beingwhether they are separate and distinct or inter-dependent, and whether one set can beprioritized over the other, or whether both setsof rights have to be aimed at simultaneously.This point is important because the nature ofobligations of the state under a possible rightto water would depend on which of the twosets of rights it is perceived as belonging to.

One view is that the two groups of rights areseparate and distinct, and that civil and politicalrights should be prioritized over social andeconomic rights; further, the former set of rightsare seen as negative rights (and thereforesupposedly implying a lesser role for the state)and the latter as positive rights. However, othersargue that the two sets of rights are inter-

5 The UNCHR has recently been replaced by the Human Rights Council.


dependent. For instance, while civil and politicalrights are necessary to fight effectively forsocio-economic rights, at the same time, someforms of adequate standards of living may benecessary background conditions for exercisingcivil and political rights (Gavison, 2004). Henceboth sets of rights are equally important tohuman welfare and must be considered equalin importance and status. Further, thedistinction between positive and negative rightsis held to be problematic in that both involvestate intervention and commitments for theirprotection (Mehta and Madsen, 2003).

While the second vision is implicitly present inthe 1948 UDHR and explicitly affirmed in theVienna declaration of 1993,

6 the two 1966

Covenants and much actual practice treat thetwo sets of rights differently (Freeman, 2002).The result is that even today, there aredifferences in the enforceability of the two setsof rights. In the case of ICESR, the duty of thestate is only to reach an adequate level ofprotection, but in the case of ICCPR, a higherdegree of duties are imposed on the state.Further, Gavison (2004) argues that while theinternational community accepts someresponsibility (at least in theory) for ensuringthat civil and political rights are not violated,especially when the violations are crimes againsthumanity, there is no similar commitment in thecontext of economic and social rights (otherthan a general commitment to cooperation andcoordination).

I now move on to the second feature of therights discourse at the international level. Inspite of a plethora of human rights instruments,until the early 1990s, international human rightslaw had been a marginal topic confined to asmall community of utopian community lawyers.This changed in the 1990s not only with thedevelopment of a global human rightsmachinery, but also with ‘rights talk’ in otherareas such as rights-based approaches todevelopment and the (re)conceptualization ofconcerns over gender inequality as ‘women’shuman rights’. Wilson and Mitchell (2003) seethis rise of rights talk and institutions of globaljustice as affording an opportunity to create amore expansive and inclusive approach todemocracy, citizenship, and justice. Similarly,

Baxi (2002) points out that even thoughinternational human rights standards and normsare not radically ameliorative of here-and-nowhuman suffering, they do empower people’smovements and conscientious policy-makerseverywhere to interrogate practices of politics.At the same time, the proliferation of rightshas led to increasing skepticism about thevalidity of their claims, as well as concern aboutthe varying (and often incommensurable)positions that they often stem from(Chandhoke, 1998).

2.2.3 Debates about human rights

The idea of human rights has been subject tocritique on a variety of counts, the mostimportant being their individualistic nature andthe imposition of a particular set of values.Both of these stem from the notion ofuniversality of human rights discourse (Gledhill,2003), and is seen as yet another instance ofWestern tyranny. There is also a more recentanthropological critique of human rights whichfocuses on the working of rights at the level ofsocial practice.

The first critique focuses on the fact that thehuman rights regime locates individuals as thebearers of rights, whereas many groups mayseek to define their entitlements in collectivistterms. Further, the individualistic nature of rightsmight result in the erosion of solidarity andbonds of community. However, some of the so-called second and third generation rightscombine individual and collective aspects –trade union freedoms, rights of the family,people’s rights such as right to development,and right to a healthy environment. Note thatcollective rights are also problematic; forinstance, when indigenous communities aregiven the right to govern their communities bycommunal consensus, dissenting individualswithin these communities may be disadvantaged(Gledhill, 2003). In fact, both the extremes –the classical individualist notion of rights asclaims of individual citizens sanctioned orrecognized by the state, and the collectivistnotion that gives priority to social claims overindividual claims – are problematic (Mohanty,1998). Further, the bearer of both individualand group rights are citizens, a category that

6 The Vienna declaration is the final document of the World Conference on Human Rights, the first post-Cold War internationalconference on human rights


is problematic because it disenfranchises largenumbers of individuals and groups such asmigrants; this is because ‘human rights’ in liberaltheory flow from membership of a politicalcommunity (that is, from citizenship) and notof a laboring community (that is, fromresidence) (Mamdani, 1998).

The second critique focuses on efforts to imposea universal moral framework via human rights.This involves two arguments. The culturalrelativism argument is that the current form ofhuman rights is based on a set of values thatare important in one particular culture, and thatthese may not be important in other cultures.The Asian values version of this is exemplifiedin the 1993 Bangkok declaration that a collectionof Asian states issued to the UN Conferenceon Human Rights held in Vienna. The declarationstated that westerners should not try tointerfere in their internal political affairs since‘Asian values’ provide a superior basis for socialand political regulation. Another variant of thecultural relativism argument is that Asiansocieties base their social structures on dutiesand obligations rather than rights.

There are a number of counter-arguments tothe cultural relativism critique of human rights.Firstly, the argument of relativism is often usedby governments to legitimize their exploitativebehavior (Wilson and Mitchell, 2003). HenceFreeman (2002) argues that this argument isbiased against the poor; the apparent consentof those who lack the resources for dissent isfalse consent, and justice requires that theweak have a real capacity for choice. Secondly,Inoue (2004) argues that the attempt tooppose ‘Asian values’ to the ‘Western’ conceptof human rights is untenable and dominated bythe same West-centrism that those who makethis attempt claim to overcome. Morespecifically, the Asian values discourse alsoends up using the Western normative languageof state sovereignty and socio-economic rightsto subsistence in order to justify Asian values.Thus, for instance, the rejection of civil andpolitical liberties as specifically Western valuesis premised on the West-originated concept ofstate sovereignty. Similarly, the anti-universalistic stand also relies on universalprinciples such as the value of cultural difference(Freeman, 2002). Thirdly, even if the languageof human rights is basically related to Europeanhistory, the ethical dimension underlying it ispresent in many cultures. Finally, even if one

accepts the fact that the social and culturalvalues of societies that are relatively affluentplay a prominent role in defining the terrain of‘universal’ rights discourse, Gledhill (2003)argues that this does not itself invalidate thediscourse as a set of goals, although it doesmean that there is a hegemonic thrust to theway western rights discourse operates.

The second argument involved in the critiqueof the universalistic nature of human rights dealsnot with the differences in the perception andimportance of rights across cultures, but withthe fact that the impact of differences indimensions such as class and gender are ignoredin efforts to judge behavior from the point ofview of human rights. As Gledhill (2003) argues,appeals to an absolute, supposedly universalstandard of rights assigned to each individualcannot be meaningful when the basic structuresof socio-economic inequality (differences inaccess to material resources, and to social andeconomic power) deny some individuals thespace to work with such standards. Forinstance, the universal application of the ideaof child rights without considering the socio-economic constraints that force families to sendtheir children to work is meaningless. Similarly,feminists have argued that human rights addressviolations by states, but do not address theviolations that women suffer at the hands ofmen in the private sphere (Freeman, 2002).Another related point here is the politics ofcultural representation involved in human rightsdebates. Often a mistaken respect for cultureinvolves taking the interpretation of dominantelites or majorities as representing cultures, atthe expense of the views of subordinate groupsor minorities. Anderson and Guha (1998), forinstance, shows how particular concepts ofrights and justice have developed in official legalsystems at the expense of others, even thoughthey have also been questioned, appropriated,and challenged by groups in civil society.

Finally, there is also an anthropological critiqueof the definition and operation of rights. Thiscritique accepts that there are differencesbetween global rights language and the languageof rights as used in local, every-day levelsituations, but moves beyond the idea of a‘clash of cultures’ or the polarities of traditionversus modernity, and western versus non-western. For instance, Wilson and Mitchell(2003) look at rights at the level of socialpractice and examine how a rights regime


creates certain types of subjectivities (victims,perpetrators), while glossing over otheridentities that these individuals might wish toassert (survivors, freedom fighters), therebyresulting in a depoliticizing of ideological conflict.

As we will see in Chapter 3, all these debatesfind resonance in the discussion of the differentdimensions of the right to water. The firstcritique that focuses on individuals as thebearers of human rights translates in the caseof the right to water into the question of theunit to which water rights should be assigned(the individual, the household, or an associationof water users). The second critique of auniversalistic conception applies to questionsof pricing (where ignoring willingness and abilityto pay across different classes could haveserious negative consequences on equity), andto how policies regarding different aspects ofthe right (the kinds of privatization that areencouraged, for instance) are shaped by avariety of factors including international tradeand service negotiations. The third critique –about keeping in mind the working of rights insocial practice – is important in order toappreciate the link between right to water andaccess to social power, as well as the linkagesbetween right to water and other rights suchas those to housing and health.

2.3 RIGHT TO WATER

Among the many economic, social, and culturalrights that have increasingly come into focusin recent times, an important one is the ‘rightto water’. The idea of an explicit right to waterhas come into focus particularly in the lastquarter of the twentieth century. The variousdimensions that such a right would involve aredealt with in detail in Chapter 3; the evolutionof the right to water in the international humanrights discourse is discussed in Chapter 4. Inthis section, I focus on the question of whetherit is useful to institutionalize a ‘right to water’in the human rights discourse.

Before turning to the question ofinstitutionalization of a right to water, it isnecessary to point out that the idea of ‘rightto water’ mirrors the tensions between legaland non-legal usages of human rights. Thusmany proponents emphasize the right to wateras a basic right stemming from human dignity,while others emphasize the aspect of legalrecognition in international and national law.

The question of institutionalization of the rightis particularly relevant to the second usage.While institutionalization would have to takeplace at different levels, the focus here will beon international human rights law; the needfor institutionalization at other levels and theforms it can take will be discussed briefly inChapter 7.

One major justification for the institution of auniversal human right on access to safe andadequate water is that it is one possibleapproach to legal protection (even if that isnot the only avenue of legal protection, andother non-legal avenues might be needed inmany contexts). However, there is also thequestion whether the enunciation of a humanright to water (like all other human rights)renders any useful function, especially giventhat there is already a plethora of rights. Thecounter-critique to this is that there is only aplethora of ‘soft’ human rights laws (such asexhortative resolutions and declarations) andnot enough ‘hard law’ which can be enforced,a point that Baxi (2002) makes in a more generalcontext.

A more relevant argument against theinstitutionalization of one more right as a humanright might be that such institutionalizationleads, not to more secure protection, but toits protection in a form that is less threateningto the existing system of power. But here toothe important point is not that human rightsshould never be institutionalized, but thatinstitutionalization is a process involving power,and that this process itself needs to beanalyzed and not assumed to be beneficial(Stammers, 1999 cited in Freeman, 2002).

Secondly, while the right to water begs anumber of definitional questions andassumptions, having a formal human right towater is still useful because it could help shedfocus on certain questions like governmentobligations, setting priorities for water policy,identifying minimum water requirements andallocation, and so on (Calaguas, 1999 cited inAhmed, 2005).

Finally, the usefulness of international humanrights law is also questioned on the groundsthat there is no relation between it anddomestic laws; however, as Pant (2003) argues,the problem is more that some internationallaws like trade agreements have gainedsupremacy over other international laws like


human rights agreements. Hence what mightbe called for is that trade agreements shouldbe based on more humanitarian grounds and/or that human rights agreements should betreated on par with trade agreements. Thecaveat here is that human rights could end upbeing used for one-sided protectionist policiesby developed countries (as when inadequatelabor standards are used as an excuse bydeveloped countries to prevent import of goodsin which developing countries have acomparative advantage).

2.4 RIGHT TO DEVELOPMENT

Among the third generation of human rights,an important one is the right to development,i.e., the right to a particular process ofdevelopment that ensures the realization of allhuman rights (civil, political, economic, social,and cultural). This was publicly proposed as ahuman right in the early 1970s and acceptedby the UN General Assembly’s 1986 Declarationon Right to Development (CDHR, 2004). Tworeasons make it relevant to a discussion of arights-based approach in water. Firstly, the rightincludes equality of opportunity for all in theiraccess to basic resources, which would includewater, and hence could provide the basis for aright to water (UN, 2004). Secondly, andperhaps more importantly, the differencesbetween the right to development and thecurrent rights-based approach to development,are useful to understand the potential thatrights discourses have to bring about equity.

The 1986 UN Declaration was one part of adecade and a half of struggles by radical ThirdWorld states within the United Nations to passa package of reforms that would result in aNew International Economic Order that was fairto poor countries. Although the declaration thatwas finally passed was non-binding and awatered-down version of what was originallyproposed, it did emphasize the global dimensionof inequalities between North and South, aswell the collective duty of all states to eliminatebarriers such as unfair trade rules and the debtburden (Nyamu-Musembi and Cornwall, 2004).However, as we will see in the following section,these aspects of the right to development aremissing in the rights-based approach to

development that emerged in the 1990s. Evenlater references to the right to developmentseem to have focused less on the politicalquestion of inequalities (whether at the globalor other levels), or even of what exactlydevelopment entails, and more on themechanisms by which the right can be widelyachieved (see for instance, CDHR, 2004).

2.5 RIGHTS-BASED APPROACH TODEVELOPMENT

The increasing adoption of rights languageemerged in the post-Cold War period in theearly 1990s, and gathered momentum in thebuild up to the Copenhagen Summit on SocialDevelopment in 1995; it was also aided by anumber of factors such as NGO initiatives inintegrating rights and development, and agrowing emphasis on participation (Nyamu-Musembi and Cornwall, 2004). While a varietyof actors – donors, governments, activists –have adopted the language, internationaldevelopment agencies probably represent thegroup that has taken on this language the most,resulting in what is now called the rights-basedapproach (RBA) to development.

7

Rights language is used in diverse ways bydifferent international agencies, and hasresulted in a range of different methodologiesand operational practices. For instance, a rights-based approach to development is oftenequated to a human rights approach todevelopment (for instance, by the UN Office ofthe High Commissioner for Human Rights). Herea rights-based approach tries to integrate thenorms, standards, and principles of theinternational human rights system into theplans, policies, and processes of development(OHCHR, n.d.). However, Eyben (2003) (citedin Nyamu-Musembi and Cornwall, 2004: 14)argues such a human-rights approach “signalsan emphasis on legal codification and normativeuniversality of rights”, and must be distinguishedfrom a rights-based approach that would include“a more all-encompassing reference to people’sgeneral sense of equity, justice, entitlementand/or fairness”. This distinction is importantbecause people often frame and make rightsclaims outside of formal legal instruments andinstitutions using a wide range of strategies, a

7 Although the current rights-based approach has a relatively recent history in the discourse of international developmentagencies, the principles articulated in it have been part of earlier struggles such as the nationalist and anti-colonial movements.


fact which is often not acknowledged by RBA(Nyamu-Musembi and Cornwall, 2004). Similarly,there is a difference of opinion about whethera human rights-based approach to developmentis part of the right to development (as putforward in CDHR, 2004), or whether the twoare distinct (as Nyamu-Musembi and Cornwall,2004 argue).

Nyamu-Musembi and Cornwall (2004) point outthat there are different takes on the potentialof RBA, with some seeing in it the promise ofre-politicizing areas of development (e.g.,participation) which have been ‘sanitized’ byinstitutions such as the World Bank, and otherswho point out that is just repackaging of ‘oldwine in new bottles’. The arguments regardingboth the possibilities and pitfalls of RBA arebriefly summarized here.

One major potential that RBA opens up is agreater focus on obligations. Sincegovernments are primary duty-bearers in arights-based approach (WHO, 2003), it couldbe used to pressurize states throughaccountability and transparency tools. In fact,RBA could also be used to address issues ofaccountability of non-state actors. Thecounter-argument to this is that even asfunding countries and agencies see aid-recipients as rights-bearers, they usually donot see themselves as bearing any definedduties that contribute to the concreterealization of these rights (Nyamu-Musembi andCornwall, 2004).

Secondly, the focus on rights could lead todevelopment being viewed as expanding thechoices of individuals (an approach which isrelated to Sen’s concept of entitlementsdiscussed in Section 2.7). In the case ofpoverty programs, for instance, this would meanshifting from a focus on increasing incomethrough economic growth to expandingfreedoms (UNDP documents summarized inNyamu-Musembi and Cornwall, 2004). However,using the discourse of rights to enable peopleto empower themselves to overcome obstaclesin the realization of social and economic rightsmay involve opting out of public services insteadof making demands on the state. Hence arights-based approach could also imply areduced role for the state (e.g., in terms ofprovision of basic services such as water). Thishas led to fears that the rights-based approachis a donor-driven agenda with a deeper purpose

of reinforcing neo-liberal values and interests(such as a focus only on individual rights), orof imposing singular Western notions of whatrights and development mean (for instance, areduced role for the state) (Escobar, 1994).

Thirdly, RBA also has the potential to influencehow donors regard (and administer) aid. Oneexample of such a change is given by theexperience of CARE staff involved in a refugeeassistance project. Nyamu-Musembi andCornwall (2004) discuss how CARE staff earlierused to feel that the situation of peoplereceiving assistance was precarious, and thatthey would be expected to make do withwhatever relief agencies were willing to offer.With a focus on rights, this changed to arecognition of refugees as human beings whoare entitled to a minimum threshold of serviceprovision necessary for a life of dignity. Whatfollowed then is not just a change in attitude,but also the freedom to take up particularissues. One example of this is when a CAREofficial used the justification of an RBA tosuccessfully question the UN’s implicit supportof the policy of the Kenyan government towithhold basic services from Tanzanian refugeesin Kenya in order to pressurize them to returnto their country. Hence even though what isactually being promoted as rights-based is notin itself necessarily different from whatdevelopment practitioners have been doing allalong, there is a view that lending thesepractices the support of internationally agreedlegislation does change the way in which theycome to be viewed by development agenciesand national governments.

Fourthly, rights language could be selectivelyappropriated and used. Thus, the World Bankclaims that it is contributing to the realizationof economic and social rights through its workof poverty reduction, but at the same timeholds that civil and political rights (exceptinsofar as they contribute to social andeconomic development) are outside its purview,ostensibly because its Articles of Agreementforbid involvement in political considerations.The Bank is also not willing to take measuresto recognize and redress the negative humanimpact of its work in the realm of development(such as the lending to big dams). In the caseof water, the World Bank justifies theprivatization of water services in terms of rights,and more specifically the creation of a systemof tradable water rights, which will allocate


water through market mechanisms. Althoughpart of the rationale for such a system is toenable less powerful groups to also have securewater rights, in actual practice, the emphasiscontinues to be on profitable use of water;there is no reference to the need to first securea minimum level of entitlement that should beavailable to all before the proposed marketmechanisms are considered, if at all (Nyamu-Musembi and Cornwall, 2004).

At the same time, the potential of RBA can beappreciated by the fact that the same rights-based approach in the case of a United NationsChildren’s Fund (UNICEF) document related towater translates into an emphasis on securingbasic levels of service for all, the need forregulation to ensure both efficiency andfairness, and skepticism about the effectivenessof market mechanisms to allocate waterresources equitably across income groups andacross competing uses (Nyamu-Musembi andCornwall, 2004).

Finally, RBA could potentially serve as anopportunity to reflect more broadly on thepower dynamics inherent in the practice ofinternational development and on the questionof ethics. However, it is important to note thatthis potential is limited by two factors. Firstly,for many development organizations, theprocess of integrating rights merely involvesadding rights language and a legal or advocacydimension to their work, instead of weavingtogether this dimension with development workin ways that could craft viable options toinequitable economic, social, political, andcultural structures (VeneKlasen et al., 2004).Secondly, unlike the ‘right to development’debates of the 1970s and 1980s, the rights-based approaches discourse has largely beenarticulated in ways that sidestep questions ofdonor country or multinational corporate dutieswith respect to the rights of poor people inthe South; the emphasis is entirely on thecitizen-state relationship at the country level(Pettit and Wheeler, 2005). In fact, Nyamu-Musembi and Cornwall (2004) argue that onereason for the acceptance of rights languageby the governments of rich countries has beenthe perception that it does not bring with itthe ideological baggage of the right todevelopment (that is, references to globalinequalities or duties beyond that of one’s ownstate).

The foregoing discussion brings out that boththe conceptualization and implementation of arights-based approach can vary, depending onthe particular actors involved and the socialand political context in which they function.

2.6 WATER RIGHTS

The concept of water rights is often conflatedwith the right to water. However, water rightsare best regarded as a sub-set of the right towater; while the concept of right to waterincludes a variety of dimensions such as accessto water, affordability, ownership, delivery, andparticipation in decision-making processes(which will be discussed in Chapter 3), waterrights refer specifically to the particular sub-set of these dimensions that are pertinent fromthe point of view of the right-holder.

For instance, when one considers the ownershipdimension of right to water, there are a numberof ‘sticks’ that constitute ownership. But ofthese, the most relevant sticks for the right-holder are operational rights (or rights of usage)and decision-making rights (especially aboutthe working of institutions involved in themanagement of water), and water rights usuallyrefer to these two sets of rights (Beccar etal., 2002; Boelens and Zwarteveen, 2002). Onthe other hand, ownership of the resource itself(whether absolute or limited by doctrines suchas that of public trusteeship), as well as thebroad determination of the nature of waterrights and their distribution, are sticks that aremore relevant for the state, even though thesedo play an important role in influencing thenature of water rights held by particularindividuals or groups.

I now turn to a number of features of waterrights.

Firstly, the term ‘water rights’ is generally usedin the context of water for non-basic needsi.e., not for water for drinking or householdneeds, but for irrigation and other livelihoodneeds.

Secondly, water rights have three dimensions– socio-legal, technical and organizational(Boelens and Zwarteveen, 2002). The socio-legal dimension ensures that the particular rightis recognized as legitimate (by law or traditionor social relations of authority), both by usersand non-users. Recognition must also beaccompanied by a capacity to defend rights


against competing claimants, without which theright ceases to be meaningful. The technicaldimension ensures that the means(infrastructure, technology, and technical skills)to take water from a source and convey it tofields is present, that is, the water right canactually be used. The organizational dimensionrefers to the mobilization of the means (laborand resources) for operation of theinfrastructure, allocation of water, formulationand enforcement of collectively required rulesand rights, and decision-making around theseissues.

Thirdly, the institution of a system oftransferable water rights (with a pricing systemcapable of capturing and reflecting the realvalue of water) is believed by many (see, forinstance, Saleth, 1996) to be essential to anefficient functioning of water markets and wateruser groups. In fact, the neo-liberal version ofwater rights basically just refers to suchtradable permits, and not necessarily to accessto the decision-making process.

Fourthly, what rights include, as well as whetherall users have different or equal rights, wouldvary across different irrigation systems,depending upon particular physical, agro-ecological, socio-cultural, and politicalconditions (Beccar et al., 2002). The importantpoint is that there must be space to allow forthis kind of flexibility, while at the same timeensuring that some minimum standards,particularly in terms of equity, are met.However, space for such flexibility is oftenmissing in practice. For instance, in recenttimes, the World Bank has promotedformalization of water (property) rights withthe objective of providing security and certaintyof legal title, so that right-holders may defendand assert their water rights vis-à-vis thirdparties, trade them, and use them as collateralfor raising finance. But the process offormalization has been criticized as not beingattuned to particularities of place and time(Spiertz, 2000). For instance, in the contextof Andean water reforms, Boelens andZwarteveen (2005) argue that the diverseproperty regions that have existed in the regionshow that the tenure of water was typicallyinsecure for large sections of the populationeven in periods characterized by privatizedregimes. Hence it is more useful to considerthe question of how to create theinfrastructure, laws, and institutions that allow

security of water tenure, rather than how andwhether to privatize and trade water.

Finally, I turn to a point which was mentionedin the context of the socio-legal dimension ofwater rights, but which needs a little morediscussion because it raises broader questionsabout the importance of law to both define andunderstand rights. This is the concept of legalpluralism – i.e., the co-existence of rules andprinciples of different origin and legitimization inthe same domain. Rights can be recognized aslegitimate by a variety of sources – formal law,customary law, tradition, and social authority.Further, plurality of law is not only seen in termsof different normative systems pertaining to onedomain of social life, but also in the way in whichone legal rule or one institution can manifestitself differently in different levels and contexts(Spiertz, 2000). In the context of water rights,the idea of legal pluralism is useful for a numberof reasons. Firstly, it serves to emphasize thatwhat a right is cannot simply be ‘read’ from legaltexts and written laws, but obtains its meaningin the particular contexts in which it is discussed,used, and applied (Boelens and Zwarteveen,2005). Secondly, there is a danger in over-emphasizing statutory rights too much,especially at the expense of other possiblemeans of ensuring rights and bringing aboutchange. Thirdly, without taking into account therole of local law and practices, it would bedifficult to understand the possibleconsequences of any proposed intervention(Spiertz, 2000).

An example based on Vasavada (2005)’sdiscussion of Aga Khan Rural SupportProgramme’s work in participatory irrigationmanagement in South Gujarat will make thispoint clearer. It was found that once a WaterUsers’ Association was formed and wasgoverned by the byelaws of the state, malefarmers also started seeing the working of theWUA from that point of view. For instance,they would hold that women could not becomemembers of societies because they did not haveland in their names, which is a requirement formembership as per the byelaws. This was asituation when a particular normative framework(the legal one) was employed by men to justifytheir preventing women from becomingmembers, even though the real cause for theirbehavior may be found more in a particularconception of gender roles in agriculture(Vasavada, 2005).


2.7 CAPABILITIES, ENTITLEMENTSAND RIGHTS

One major potential of rights-based approachesis their potential to link ‘rights’ and‘development’. However, as the section onrights-based approach shows, it is not obvioushow this linkage is to be operationalized inpractice. One possible way to do this (whichhas been attempted by UNDP) is to use Sen’sconcept of capabilities (CDHR, 2004). Theconcept of capabilities has also been putforward by Nussbaum (2000) as offering a betterbasis than rights to approach the idea of abasic social minimum to all. Another conceptthat is related to capabilities, and is often foundin discussions of rights-based approaches inwater as well as in discussions of equity, is theconcept of entitlements. Hence it would beuseful to review the concepts of entitlementsand capabilities.

The concept of entitlements has a long historyin moral philosophy, starting from Locke in theseventeenth century to Nocizk in the twentiethcentury (Gasper, 1993). However, it was Senwho brought the concept into focus with hisanalysis of famines in West Bengal, where thefailure of entitlements to cover subsistenceneeds was put forth as the key cause ofstarvation and death. This was against theconventional notion of a famine as arisingbecause of inadequate supply of food. A numberof inter-related concepts were put forward bySen in his analysis.

8 A person’s set of resources,

including their labor power, is his/herendowment. A person’s effective legitimatecommand (i.e., the set of commodity bundlesthat can be legally attained by using one’sendowments and opportunities) is his/herentitlement.

9 E-mapping refers to the relation

that specifies the set of possible commoditybundles that are legally attainable from anygiven endowment, through trade and/orproduction. Thus it reflects the rules,conditions, and processes which affect howone’s entitlements are derived from one’sendowments. Types of possession/acquisition/claims that are deemed legitimate in a givencase are determined by rules of entitlement

such as legal rights concerning privateownership of goods and factors of productionplus other social rights. A person’s capabilityrefers to the alternative combinations offunctionings (things which a person may valuedoing or being) that are feasible for him or herto achieve. The relation between entitlementsand capabilities is that entitlements enhancepeople’s capabilities and consequently theirwell-being.

Following Sen’s formulation of entitlements inthe context of famines, there are now severalextensions to entitlement analysis applied toissues ranging from privatization, households,and environment.

10 There have also been a few

attempts to apply Sen’s entitlement approachto understand access to water supply (see,for instance, Anand, 2001). But the theoreticalconcepts and approach have generated a lotof debate. For instance, there is criticism aboutthe fuzziness about the meaning of the termentitlement, both in the context of commonproperty resources (Devereux, 2001) and interms of whether it is a positive or a normativeconcept (Gore, 1993 cited in Gasper, 1993).For instance, although the central sense of‘entitlement’ is ‘what one has title to’, thereare many types of possible or proposed titles –moral, legal, de facto. Further, the term‘entitlement’ already has a normative meaningin discussions in moral philosophy precedingSen’s analysis. Hence although Sen’s own usageis descriptive, its normative associationsinevitably influence the use of the term inpractice; confusion also arises from itsreference not to actual receipts of people butto what they could potentially acquire (Gasper,1993). Sen’s formulation is also believed tooverlook the centrality of political processes aswell as the fact that individuals are sociallyembedded members of households, communities,and states (Devereux, 2001). Similarly, evenmany later formulations of ‘extendedentitlements’ (which go beyond legal rights asa means of acquiring entitlements) do not gofar enough in terms of the range of possiblemechanisms for resource access and controlthat they include (Leach et al., 1999). Theseformulations also fail to acknowledge conflicts

8 The subsequent discussion draws heavily on Gasper (1993).9 Gasper (1993) points out that ‘entitlement’ is an extension of the concept of purchasing power in micro-economics, to cover

acquisition potential as a whole, not only via exchange.10 For a brief summary of these, see Gasper (1993).


between legal and non-legal channels, and thefact that rules of entitlement are themselvessubject to negotiation and struggle, and involvedebates over meaning (Gore, 1993 cited inLeach et al., 1999).

In spite of all these criticisms, two variants ofSen’s approach are potentially useful in thecontext of the idea of ‘right to water’. One isNussbaum’s capabilities approach, which looksat how people are actually enabled to live, usinga given set of rights. Nussbaum (2000) arguesthat while the language of rights could be usefulin the realm of public discourse (e.g., to remindthat people have urgent and justified claims tocertain kinds of treatment), the manyphilosophical disagreements with respect to theissue of rights (such as the basis of rights claimsand whether rights are part of a social goal orside-constraints on goal-promoting action)mean that capabilities

11 provide a better

philosophical basis for analyzing economicrights. Nussbaum argues that rights can beanalyzed in a number of distinct ways – in termsof resources, utility, or capabilities. Givingresources to people does not always bringdifferently situated people up to the same levelof capability. Similarly, in the case of utility-based analysis, the problem is that traditionallydeprived people may be satisfied with a verylow living standard, believing that this is allthey have any hope of getting. According toNussbaum, the advantage with a capabilitiesapproach is that it looks at how people areactually enabled to live, and offers a clearrationale for spending unequal amounts ofmoney on the disadvantaged, or creatingspecial programs to assist their transition tofull capability. Even though it is not clear thatcapabilities take clear positions on the debatesarising in the context of rights (as Nussbaum,2000 claims), the concept is still useful,especially as a standard against which toevaluate rights such as the right to water (thestandard being that a certain minimum thresholdis ensured to all), or to link rights anddevelopment. It would mean, for instance, thatone is less concerned with coming up with aparticular amount of water that all individualsshould have and more with what people can

do or be with (potentially different amountsof) water.

The second variant of Sen’s entitlementapproach focuses on endowments, instead ofon the failure of entitlements or on capabilities.While it is true that endowments are often nottranslated into rights, Leach et al.(1999)

12 and

Menon (1999) point out that the prior concernmust be endowments. Equity of resourceendowments, where right to water would beone among many endowments, is one way toaddress concerns about social justice. In fact,Menon argues that as long as there is spacefor flexibility in defining the basket ofendowments, concerns about cultural specificitycan also be dealt with within this approach.The endowment approach put forward by Leachet al. has the additional merit that it emphasizesclaims-making capacity as an endowment,which social actors combine with otherendowments in their attempt to achieveeffective command over environmental goodsand services. This is important becauseentitlement failure “frequently results less frompeople’s lack of institutionally grounded claims,but from their incapacity to make claims “stick”against those of more powerful actors in thecontext of resource struggles” ( Leach et al.,1999: 241).

2.8 CONCLUSION

This chapter reviews different rights-basedconcepts that are relevant to water. Among allthe rights-based concepts, human rights haveperhaps played the most significant role sincethe second half of the twentieth century. Evengiven the ideological baggage of the conceptas well as its limitations, it is still useful toengage with it because it can force nation-states to address certain concerns as well asoffer interesting lessons for the formulation andworking of a right to water (such as allowingadequate space for differences across culturesand ecological systems). The concept of rightto water is used most by organizations workingin the realm of human rights and water, whilethe rights-based approach to development ismainly used by international development anddonor agencies. Both mirror themes that are

11 Note that Nussbaum’s use of capabilities is slightly different from Sen’s usage of the term.12 Leach et al. (1999) put forward the concept of environmental entitlements, which extends entitlement analysis to explain how

access to and control over natural resources are also socially differentiated.


found in the discussion of human rights,particularly the tension about the basis of claimsand the sources of legitimization (that is, thelegal versus non-legal aspects of the rights)as well as the obligations of the state. Thediscussion of right to development and rights-based approaches also helps to bring in focusthe fact that a rights-based discourse mustbe used very carefully if one is to avoid its co-option into agendas that work against the goalof social justice. The discussion of water rightshelps to unpack the bundle of sticks thatconstitute ownership. Finally, the discussion ofrights, entitlements, and endowments offers atheoretical foundation for linking a rights-basedframework to equity.

In the rest of the report, the main focus will beon the concept of right to water. The sense inwhich I use right to water is not as ‘humanright to water’, but more as a right arising fromhuman dignity. Note that a right to water isonly one sub-part of a rights-based approachto development (generally or in the specificcontext of water). A rights-based approachwould be broader than a right to water in thatit would also consider how water policies affectother economic, political, social, and culturalrights. While the inter-relation between thesedifferent kinds of rights will be briefly consideredin this study, it is not the focal point. The mainaim is to delineate the contours of a right to

water and the complexities involved both in itsconceptualization (Chapter 3) as well as itsworking at different levels (Chapters 4, 5, and6). However, this discussion does shed somelight on how a rights-based approach is usefulin the context of development.

Further, as Nyamu-Musembi and Cornwall(2004) point out, any version of the rights-based approach needs to be analyzed in termsof its normative content – that is, in terms ofwhat ideals it invokes, what vision it represents,and how this vision is contrasted with existingpractice and turned into a basis for reorientingdevelopment practice and practitioners. InChapter 1, I have already discussed that thenormative vision underlying this review of theright to water is that of social justice andequity, for which the two variants of Sen’sentitlements approach – Nussbaum’s approachfocusing on capabilities, and the approachsuggested by Leach et al. and Menon focusingon endowments – are useful. While the reportitself basically deals with the rights discourse(and not on endowments or capabilities) forreasons outlined in Chapter 1, the idea of theright to water constituting an endowment, aswell as the idea of rights helping to increasecapabilities in order to ensure a certain minimumthreshold to all (à la Nussbaum), if not fullcapability equality (à la Sen), will remain anunderlying theme throughout.


CHAPTER 3

CONTOURS OF A RIGHT TO WATER

3.1 INTRODUCTION

Having provided a brief background of differentrights-based concepts in Chapter 2, I now turnto a discussion of the concept that is the mainfocus of this review viz., the right to water.Realizing the right to water, like all economic,social, and cultural rights, requires greaterspecificity in the content of the rightsthemselves, along with profound changes inthe structures and budget priorities ofgovernments as well as broader mobilization toclaim them (Nyamu-Musembi and Cornwall,2004). This chapter aims to clarify the contentof the right to water i.e., the differentdimensions involved in it. How these dimensionsplay themselves out in the Indian context aswell as in the case of Maharashtra will formthe subject of Chapters 4 and 5 respectively.

One can distinguish between seven broaddimensions that need to be discussed. The firstdimension concerns the scope of the right towater. This includes questions such as whatkind of needs should be considered within theambit of the right to water (drinking, personalhygiene, household needs, livelihoodrequirements) and the quantity and qualityrequirements for each of these, as well asaccessibility and affordability of water. Thesecond dimension concerns the duties andresponsibilities implied by the right. There aretwo aspects to this. One is the question ofwho the ultimate bearer of responsibility forthe right is. A related point here is whatimplications the right to water has for thedevelopmental functions of the state. Thesecond question is whether the right to waterentails any duties on the part of the right-holders.

The next three issues – ownership of waterresources, the kind of system set in place forwater delivery, and pricing of water – arerelated, among other things, to the questionof whether water is to be treated as aneconomic good. An influential view in the realmof water has been that treating water as an

economic good would result in improvedefficiency, equity, and sustainability. This hasusually meant that market-based deliverysystems are put in place, and that water ispriced at its economic value; the question ofownership of water is a little more unclear inthis view, although the establishment andenforcement of an effective (individual)property rights regime is usually consideredcritical (see, for instance, Saleth, 1996).Further, for some actors, market remedies andprivatization solutions for growing waterscarcity and quality problems are congruentwith goals about social justice (including rightsof the poor to water). For others, it is notclear that treating water as an economic goodwill lead to equitable access to water.

The sixth dimension concerns the relation ofthe right to water with other rights such asright to housing or right to development. Thisis important partly because all rights havecomplementarities and conflicts with eachother, and partly because in the specific caseof water, its use as an input in many productionprocesses (be it in agriculture or industry)means that the relation between water andthe development process becomes critical. Theseventh dimension of a right to water dealswith a number of changes in the internationalarena (both in the realm of water andotherwise) that will impact both the contentand the working of the right.

Before moving on to a more detailed discussionof each of the seven dimensions in the rest ofthe chapter, a couple of points need to benoted. Firstly, these dimensions are not uniqueto the rights discourse, and have beendiscussed in a variety of contexts before. Butbringing these different issues together helpsto (a) bring out the inter-connections betweenthem and (ii) re-enforce the fact that evendefining what a right to water is complex (letalone realizing it). Secondly, there is nouniversally correct ‘answer’ to the questionsraised by each of these dimensions; in fact,the provision of mechanisms that enable


context-specific discussion of these issues isas important a part of the right to water asthe final resolution of the issues themselves.This is an important point to keep in mind whenone turns to the practical implementation ofthe right to water.

3.2 SCOPE OF THE RIGHT TO WATER

Perhaps the most important question withregard to the scope of the right to water iswhat needs must be met under it. This, in turn,will determine the quantity of water that willbe needed to satisfy the right.

In general, there is a fair amount of agreementthat water for basic needs should be availableto all. For instance, Gledhill (2003) argues thatthe right to water must be limited in quantityto basic needs for drinking, cooking, andfundamental domestic uses. However, there isno consensus on the exact amount of waterthat would satisfy basic needs,

13 as well as

whether one should have a universal standardor whether (and how) differences in requirementdue to culture, climate, and technology shouldbe taken into account. Basic water requirementssuggested by various donor agencies such asthe World Health Organization, US Agency forInternational Development, and the World Bankrange from 20 to 50 liters per capita per day.However, greater amounts of water are alsolikely to significantly increase health and qualityof life (CESR, 2003b). There is also the fearthat suggesting a particular level of waterprovision can provide excuses for governmentsto ‘lock’ water provision at that level (UNESCO-WWAP, 2006).

Further, there are some who argue that thescope of a right to water should be widened toinclude water to meet livelihood requirements,especially in the case of those engaged inprimary sector activities such as agriculturewhere water is an important input in theproduction process.

14 This is a more

controversial point, both whether the scope ofthe right should be extended in this manner, aswell as whether water for livelihoodrequirements should be treated differently (interms of pricing, for instance) than water forbasic needs. One of the major hurdles in

extending the scope of the right to meetlivelihood requirements is an economic one viz.,the high financial, legal, institutional, andcultural costs for states in implementing ahuman right to water, leading to the suggestionthat states could start with a basic needs rightand then move onto a more holistic right(Bluemel, 2004).

Another related issue that the broaderinterpretation of right to water raises is thekind of development that water is used for. Ifthe right to water is used to meet livelihoodrequirements by means of developmentalprocesses that are problematic on grounds ofequity or sustainability (for instance, cultivationof water-intensive crops in semi-arid regions),then the right becomes meaningless.

Apart from the question of the quantity of waterneeded to satisfy basic needs, any right towater would also have to set standards to dealwith accessibility, affordability, and quality. Thequestion of affordability of water will be furtherdiscussed in the context of pricing. But a usefulconceptualization of ‘affordability’ is providedby WHO (2003). Firstly, affordability could beconceived in terms of a relation between incomeand expenditure on water; more specifically,no more than three to five percent of anindividual’s income is to be spent on water.While WHO does not discuss the possibility ofthis percentage differing across income groups,this might be a way to deal with inequities inincome distribution. Secondly, WHO emphasizesthe fact that what people can pay is not simplya matter of absolute income, but also of theexpected income stream. Hence if people earnmoney on an irregular basis, this may deterthem from entering into long-term arrangementswhich might be cheaper in the long run, butentail regular financial commitments.

Requirements of accessibility and quality havetypically been less discussed than the questionof quantity of water or pricing (Bluemel, 2004).This is in spite of the fact that the quality ofwater is related to questions of health. Forinstance, drinking water could be contaminatedby a range of chemicals (lead, arsenic,benzene), microbes (bacteria, viruses,parasites), and physical hazards (glass chips,

13 In fact, apart from drinking, what constitutes basic domestic needs is not very clear.14 The scope of the right to water may also include water for nature, or water to fulfill the basic ecosystem needs of water. This

particular aspect is not considered in this study.


metal fragments) that could pose risks to healthif they are present at high levels. In the light ofincreasing groundwater pollution as well ascontamination of surface water bodies, whichoccurs due to chemical fertilizers and pesticidesused in agriculture as well as dumping ofhousehold and industrial waste withouttreatment, the question of quality of water isslowly acquiring importance. Cases such as thearsenic contamination of groundwater inBangladesh and West Bengal in the South Asianregion have also helped to bring this issue intofocus.

15 It is also important to note that meeting

adequate levels of sanitation is critical in orderto ensure that water meets certain qualitystandards, because one of the primary causesof contamination of water is the inadequate orimproper disposal of human (and animal) excreta.

In order for water to be secure and useable,everyone must also have safe and easy accessto water facilities. For instance, in householdsusing only a remote and unprotected source,health can be jeopardized by watercontamination. Further, collecting water fromdistant sources could also mean that a lot oftime is spent on the task, with the result thatwomen and children (who are the ones whobear the burden of collecting water in manycultures) are unable to undertake otherproductive activities (like going to school inthe case of children). In addition, there is alsothe risk of injury while carrying heavy loads.

It is important to note that questions of quality,access, and affordability differ for different usesof water, as well as across classes and gender.For instance, the quality of water would dependon the particular need in question: water fordrinking would have to be of a higher qualitythan water for cleaning purposes, since health-related problems could arise not only due toinsufficient water, but also due to problems inwater quality such as fluoride contaminationand arsenic poisoning. Similarly, Nanavathy(2000) (cited in Ahmed, 2005b) points out how

different ‘types’ of water are required by womenfor different purposes: for instance, women incoastal areas want brackish water to growprawns and shrimps in, while textile workerswant soft water to process their vegetable dyesfor block printing. Questions of quantity, quality,access, and affordability are also inter-related.For instance, not being able to afford officialsources of safe water might result in householdshaving to use water from polluted streams andrivers (Mehta, 2004).

Hence one cannot just talk of water in a uniformmanner. In fact, instead of posing the discussionof the scope of the right to water in terms of afixed allocation of water (along with quality,accessibility, and affordability), it might be moreuseful, at least as a first step, to focus on theprinciple of equality and capability to do andto be (à la the capabilities approach of Senand Nussbaum); that is, the idea that peopleall over the world should have access to safe,adequate, and affordable water in a mannerthat ensures a basic level of healthy functioningand well-being (Mehta, 2003b).

16 But while this

would automatically allow scope for inclusionof cultural and other kinds of differences in theright to water, it also means that more context-specific interventions become critical.

3.3 DUTIES/RESPONSIBILITIESIMPLIED BY THE RIGHT

For a right to water to be meaningful, thereneeds to be clarity on who bears ultimateresponsibility for ensuring that water is providedto all as a basic human right. That is, whowould be penalized and how in case of violations(a particular community, state or nationalgovernments, or the international worldsystem), which body (such as an InternationalCourt of Justice for Water formed explicitly forthis purpose or the International WaterTribunal)

17 would be responsible for judging

violations, as well as whether a system ofcompensation for those without water can/

15 Until the early 1970s, shallow hand-dug wells, rivers, and ponds were the main sources of drinking water for villagers inBangladesh and West Bengal. But since surface water pollution was causing epidemics of cholera, aid agencies fundedtubewells to tap groundwater, a practice that then became widespread. By the late 1990s, however, it was discovered that thearsenic level in many tubewells was way above safe limits, leading to a variety of health problems, including an increasedincidence of cancers in the region (Anonymous, 1998).

16 Even if all people reach such a basic level of functioning and well-being, there would still be high levels of inequalities in society.Addressing these, by means of a right to water in conjunction with other rights, could be the next step.

17 The Tribunal is a nongovernmental organization seated in Amsterdam. It receives ‘complaints’ concerning water uses andestablishes multidisciplinary ‘juries’ of independent experts to pass judgment on them and to make recommendations for theirsolutions (Alvarez, 2003).


should be put in place. While an internationalbody could potentially judge violations, ultimateresponsibility for implementing the right wouldhave to rest within nation-states (though onecould have variations in the level of state thatbears this responsibility, depending on thedegree of centralization or decentralization thatone has in place). As Nyamu-Musembi andCornwall (2004) emphasize, the only formalaccountability that communities can expect isfrom their own government.

Apart from the question of who bears ultimateresponsibility, the right to water would alsoimpose obligations and responsibilities on thestate to implement the right. Although this isfairly commonly accepted, there is disagreementon the precise nature of these obligations. Forinstance, Alvarez (2003) points out that stateobligations with respect to a right to water aswell as the methods used to enforce it areoften construed as depending on whether it isunderstood as part of the right to life, or aspart of the right to health, or the right to food,or as a proper right in itself. This is becauseright to life comes under the ICCPR, and theright to health and food under the ICESCR,and obligations under the two differ; the lattercalls only for progressive realization whereasthe former calls for immediate steps. At thesame time, the dichotomy between the twosets of rights (civil and political on the onehand, and economic, social, and cultural onthe other hand) has increasingly beenquestioned, especially in the case of basicneeds such as food and water. In fact, manyrecent discussions of the right to water (suchas UNESC, 2002 and WHO, 2003) hold that thestate should have obligations at the leveldecreed by the ICCPR.

18

The responsibility of the state would alsodepend on whether we conceptualize the rightas a positive right or a negative right;traditionally, a positive right (what is sometimescalled an entitlement) is believed to increasethe scope of the state’s responsibilities far more

than a negative right (or a claim). Hence if aright to water implies a positive right, the statewould have to play a proactive role in providingwater. For instance, the state would have toactively protect existing water resourcesagainst polluting industries, and not merelyreact after such pollution has taken place.However, if it is interpreted as a negative claimright, the state would have to not interferewith existing rights to water, without necessarilyhaving to take active measures to ensure waterfor all.

The perceived role of the state has alsochanged over time, particularly since theadoption of neo-liberal policies in the 1990s.During the water decade of 1981-90,governments were primarily seen as being theprovider of basic services such as water andsanitation, although the participation ofcommunities in decision-making was alsoencouraged. But by the time of the Dublinconference of 1992, and to date, the thinkingis that the state should be the facilitator andthe regulator rather than the sole provider(Hausermann, 1999). Even the introduction ofa (human) rights approach need not necessarilyput the onus on the government to be the soleprovider, depending on the precise wording ofthe legislation. Thus in the South Africanconstitution, the right to water (along with therights to housing, health care, food, and socialsecurity) are subject to the limitation that “thestate must take reasonable legislative and othermeasures, within its available resources, toachieve the progressive realization” of each ofthese rights.

19 However, what ‘reasonable’

means and who decides it, as well as thequestion of how one judges specific instancesof allocation of resources (that a governmenthas at its disposal) between water and othercompeting claims, are unclear.

In general, the question of how to measure orevaluate state compliance and implementationof a right to water is a difficult one, although anumber of possibilities have been laid down.

18 This would mean that the state has the obligation to respect the right, to protect it, and to fulfill it. The obligation to respectprohibits actions that undermine the right, including such activities as pollution from state-owned facilities. Obligations to protectthe right to water require that states implement regulatory systems to control private-actor behavior that might interfere with theright to water. Obligations to fulfill the right to water include a responsibility to facilitate enjoyment of the right, promotion of theright through education measures, and provision of the right where individuals or groups cannot realize their right due toinsufficient personal means (Bluemel, 2004).

19 Online version of Constitution of Republic of South Africa, 1996, Chapter 2, Sections 26 and 27; italics mine. Website: http://ace.at.org/ero-en/topics/parties-and-candidates/constitution%20South%20Africa.pdf, accessed on July 21, 2006.


These include measuring the generalpopulation’s access to water, measuring thepersonal consequences of the lack of accessto water, using the reporting systems of theICESCR and of the ICCPR, and through theindividual petition systems of complaints of theICCPR and of the Inter-American Conventionon Human Rights (Alvarez, 2003). But giventhat most governments, especially in developingcountries, are already engaged in providingwater directly or indirectly, it is not easy tojudge what difference would be made in thisprocess, and in general in the developmentalobligations of the state, by having water as ahuman right (Mehta, 2003b). Nevertheless, theneed for a right to water could still have otherjustifications – for instance, in terms of its useas a potential tool by actors in social movements(as will be evident in Chapter 6).

Finally, the question of duties andresponsibilities is not just about who bearsultimate responsibility or what the obligationsof the state should be, but could also includelimits on the amount of water that one couldconsume, or restrictions on the manner in whichit is used (Mehta and Madsen, 2003). Whilethese aspects are particularly important fromthe point of view of equity and sustainability,they are also more controversial (for instance,the question of what specific measures –regulation, moral injunctions, and so on – thatone would use to restrict consumption).

3.4 OWNERSHIP OF WATER

Not only are the questions of ownership,management, and pricing of water the mostcontroversial ones in the context of anydiscussion of right to water, they are alsoprobably the issues in which lack of conceptualclarity is the greatest. This is most evident indiscussions of privatization, where the handingover of a particular aspect of watermanagement (such as purification of water) toa private entity is often conflated with privateownership of the water resource itself(Paranjpye, 2005).

As the discussion in Chapter 2 brings out,

ownership is best seen as a bundle of sticks.From the point of view of the holder of theright to water, probably the most relevant stickis of usage (though other sticks such astransferability may be relevant in certaincontexts). But when one considers the waterresource as a whole, the sticks that becomerelevant are those of absolute ownership andof decision-making regarding the nature of rightsand their distribution. It is these that will bediscussed in this section. The particularinstitutional mechanisms that are actuallyinvolved in the working of water rights atdifferent levels are discussed in the subsequentsection on delivery of water services.

In terms of absolute control or ownership ofwater resources, the idea of private ownershiphas much less support than the ideas of market-based water delivery and water pricing (Bluemel,2004). Even though water is not a public goodin the strict economic sense of the term dueto its divisibility (Langford, 2005), viewing wateras ‘belonging to the public’ or as a public trusthas considerable support under the Roman lawor Common law doctrines (Solanes, 1999).Under this doctrine, the state would be thetrustee of the public.

20 Although the public trust

doctrine (or variants thereof) has beenincorporated in the constitutions of a numberof countries as well as in national legislation(such as the National Water Act of 1998 inSouth Africa), many still continue to vest thestate with absolute control of water. This isparticularly true in the case of surface water.Groundwater law in most cases is far lessinfluenced by the public trust doctrine, and acommon practice is that the owner of thesurface land is also the owner of the waterunder the ground, though in some cases, oftenas a response to increasing groundwaterpollution, groundwater is also controlled aspublic property or by invoking the police powerof governments (Solanes, 1999).

The question of whether the state is merely atrustee or an absolute owner has importantimplications for the kind of policies that thestate undertakes and the extent to which civilsociety initiatives can push for changes in the

20 The public trust doctrine, developed in the ancient Roman empire, rests primarily on the principle that certain resources like air,sea, water, and forests have such a great importance to people as a whole, that it would not be justified to make them objectsof private ownership. Being a gift of nature, they should be freely available to everyone irrespective of status. The doctrineenjoins upon governments to protect the resources for the enjoyment of the general public rather to permit their use for privateownership or commercial purposes.


water sector. This will become clearer in thediscussion of state legislation and civil societyinitiatives with respect to water in Chapters 4through 6.

Whether ownership of water is vested with thepublic or directly with the state, the otherimportant question is who decides theallocation of rights over water, as well asdelineates the exact nature and scope of theserights. Boelens and Zwarteveen (2005) arguethat “the most important question in relationto water is not whether to price, privatize, sellor purchase, but rather who owns water accessand control rights? What are the contents ofthese rights? Which acquisition mechanisms aredeemed valid, and who has legitimate authorityto defend, enforce, and sanction these waterrights?”(p. 738).

Usually, it is the state that is the decision-making authority, although in principle, anindependent statutory body could alsoundertake these functions. Even in the contextof decentralization, where one may want togive greater powers to local bodies to takedecisions about the use of water, the need forsome kind of broad guidelines remains. What iscrucial is that the process of decision-makingby the state be democratic, in the sense oftaking into account the opinions of differentsections of society (and/or actively involvingthem in the process of decision-making), aswell as transparent.

In terms of the nature of the rights, while thereis a fair amount of consensus that the right towater is essentially a usufructuary right, thereis controversy about whether or not theseshould be tradable. Advocates of water marketsusually call for usage rights to take the form ofindividual-based tradable water rights. Thejustification for this is not just on the basis ofimproved efficiency, but also better equity andsustainability. Further, such a property rightssystem is deemed to be compatible with a publictrust doctrine (Saleth, 1996). However, theindividual basis of rights is often critiqued, asalso the fact that very often, these rights haveto be purchased and hence they are notaffordable to all. Further, Bauer (1997) (citedin Boelens and Zwarteveen, 2005) point out

that most of the benefits attributed to watermarkets would be achieved through theprovision of security alone, irrespective ofwhether water rights are tradable andtransferable.

In deciding the nature and scope of the rightsthat different entities have over water, it isimportant to keep in mind that there aredifferent kinds of rights already in place, i.e.,one never starts from a tabula rasa. Thesediffer in the sources from which they draw theirlegitimacy (such as custom and law), as wellas their content. How best to reconcile thesedifferent kinds of rights, especially from thepoint of view of ensuring right to water to all,as well as the practical constraints in doingso, would have to be kept in mind. Note alsothat existing rights should not be frozen asthey are, as this might just end up reproducinginequities (Spiertz, 2000).

Another important aspect to the nature ofrights is the unit to which the right is to beassigned – the individual or the household.

21

There are a number of inter-related pointswhich are important to keep in mind whiledeciding the unit.

Firstly, there may be a difference between theunit to which a right is assigned and the unitof implementation, which in turn has implicationsfor equity. In South Africa, for instance, as perits Basic Water Policy, each person is to receive,without cost, 25 liters of water per day free.However, in the process of implementation, thefree amount of water is calculated on ahousehold and not an individual basis (using ahousehold size of eight), which tends todisadvantage larger and poorer black families(Langford, 2005). In general, whenever the unitof implementation is the household, the amountof water per household ends up being calculatedon the basis of an average size, which in turnmeans that larger families are implicitlypenalized.

Secondly, having the household as the unit towhich water rights are assigned could result in(or further aggravate existing) intra-householddisparities in the distribution of resources,especially along lines of gender. Since

21 These two units are the ones that are most relevant for drinking and irrigation water. Even in the case when irrigation waterrights are assigned to a collective unit such as a Water Users’ Association, in the process of actual implementation, it is on ahousehold or on an individual-basis that water is finally allocated.


landowners are usually men (and even in caseswhere women are the nominal landowners,actual control often is vested with men), andheads of households too are usually men, rightsover water end up being vested with malemembers of the household. Further, it isassumed that women’s interests are congruentwith those of the household, and that the menof the household will take care of both (Agarwal,1992). Hence there is no perceived need forseparate water rights for women. The onlycases in which women sometimes get waterrights are in the case of women-headedhouseholds (which usually consist of singlewomen).

The question of formal vesting of rights overwater for women is critical for a number ofreasons. First of all, women and men withinthe same household may have different notionsabout what to do with the water,

22 and women

may not be able to carry out their desired optionin the absence of rights being vested with them.Secondly, water rights can become an importantmeans to improve the bargaining position ofwomen both within and without the household,although Zwarteveen and Meinzen-Dick (2001)point out that for this to happen, water rightshave to be accompanied by a greater voice orcontrol in other realms too. Thirdly, water rightsmay be important in case women wish to breakaway from their natal or marital households.Finally, even when women have informal waysof obtaining access over water, these may notbe secure, and water rights could help remedythis (Zwarteveen and Meinzen-Dick, 2001).

However, assigning water rights separately towomen (along with rights to men, or instead ofrights to men in the same household) is verydifficult to undertake in practice due to socialnorms. Further, assigning water rights to womenwithout rights over land and/or other inputsneeded for production may not be meaningful.Another complicating factor is the inter-weavingof gender with other dimensions such as classand caste; that is, women do not constitute asingle, unitary, and homogenous category. Forinstance, water rights are more important forwomen of lower economic classes, such as

landless or marginal households, because theseclasses have limited access to water and otherresources, and women’s control over water (e.g.,to decide how it is to be used) becomes evenmore critical. But in such households, gettingwater rights for anyone is difficult. Hence inthese cases, it might be pragmatic not to fightfor water rights for women separately butinstead for the entire household. In general,then, it is important to recognize that relationsbetween men and women are characterized byboth co-operation and conflict, so that insteadof taking decisions about who to give waterrights to on an a priori basis, one needs toconsider how women themselves view waterrights, as well as to what extent formalized waterrights would benefit them in a given context(Boelens and Zwarteveen, 2005).

The third point that is important from the pointof view of the unit to which water rights areassigned (especially in the case of irrigation) isthe relation between access to land and accessto water. In fact, the lack of water rights forwomen also results in part from their lack ofcontrol over land. The same issues that areraised in the context of gender – the feasibilityof bringing about greater equity in thedistribution of land-holdings, whether accessto other resources is also needed in order touse land and water effectively – also apply ingeneral. However, it is still important to keepthis point in mind, especially in a rural context,where the sources for irrigation and drinkingwater are often the same (e.g., private wells,canals), so that special provision would haveto be made to ensure water for landlesshouseholds.

Finally, in most countries, a minimal criteria forany human right to be accorded (whether toan individual or to a household) seems to becitizenship. However, ‘citizens’ constitute apolitical community defined by the state, andat any given time, there may be groups of people(slum-dwellers, migrants) who are ‘non-citizens’(Mamdani, 1998). How to ensure that eventhese non-citizens have access to basic rightssuch as the right to water then becomes animportant question.

22 For instance, in case of irrigation water, women often want to grow at least a minimum amount of staples, in order to ensurefood security for the household, whereas men often want to move entirely to cash crops, which are perceived as morelucrative (D’Souza, 1998). However, Zwarteveen and Meinzen-Dick (2001) argue that there is considerable complementarityand inter-connectedness between male and female uses of water.


3.5 DELIVERY OF WATER SERVICES

From the point of view of ensuring that theright to water is actualized, the institutionalmechanisms put in place to undertake delivery

23

of various water services such as purification,distribution, sanitation, and sewerage arecritical. This is particularly true in case of largesources of water where a suitable infrastructureneeds to be built and managed for allocationof water, but is also now applicable to relativelysmaller sources of water (such as borewells),where purification has become critical becauseof increasing contamination and pollution.Institutional mechanisms for delivery of waterservices are what come under the heading ofgovernance; while governance includes anumber of different dimensions, my focus herewill be on privatization.

Traditionally, it has been the state (or state-owned enterprises) that has undertaken deliveryof water services, both in the context of drinkingwater in urban areas and irrigation water fromcanals in rural areas.

24 This is because of the

peculiar characteristics of water such as a highdegree of natural monopoly, high capitalintensity and the presence of sunk costs, themultipurpose and hydrologically interconnectednature of the water resource itself, as well asthe perception that public provision is the bestway to guarantee universal access (Mehta,2003b). But the currently dominant view is thatthe private sector (including foreign privatebodies such as MNCs) should be permitted toundertake this function, given the limitedeffectiveness of national or state governmentsin this respect (which in turn is due to acombination of reasons such as inadequatefinancial resources to undertake theinvestments needed, mismanagement, and poorinstitutional arrangements).

25 This trend

towards privatization is most visible in thecontext of developing countries, withinternational financial institutions such as theWorld Bank and the IMF making privatization ofwater supply systems a prominent lending

condition as well a part of structural adjustmentprograms (Mehta, 2004). Another alternativethat is recommended is partnerships of privatefirms and public bodies.

Bluemel (2004) distinguishes between twostrands in the debate on privatization of watersupplies – normative and applied. The normativestrand posits any attempt at privatization asnegative, using arguments such as water beinga public resource and the symbolic significanceof water in many cultures. The applied strandasks whether a particular privatization approachis appropriate under the circumstances or hasbeen properly designed (see, for instance,Newborne and Slaymaker, 2005). Both strandsare useful for different reasons. The normativestrand helps to go beyond the focus on howbest to create competitive conditions, andquestion the basic (neo-classical) economicnotion of perfectly competitive markets leadingto the best outcome (whether in terms ofefficiency, equity, or sustainability). The appliedstrand helps to focus on the importance ofregulation and the role of the state even inthe context of privatization. The discussion inthis section mainly deals with the applied strand.

Before turning to the arguments for andagainst privatization, it is first important to notethat it could take a number of forms. Table 1(on page 28) summarizes the major forms.

Of these, concession contracts have been themost common form (Mehta, 2004). Suchcontracts operate for instance in Buenos Aires,Argentina and in Nelspruit, South Africa, andenable governments to retain ownership ofassets while passing the risk to the company(Holland, 2005). These are sometimes perceivedto be superior to the other forms because (i)they introduce competitive incentives forefficiency since companies usually bid againsteach other to win the concession contractsand (ii) the contract itself can function as thechief regulatory mechanism. However, Rees(1998) argues that competition is often

23 Delivery would broadly include building the necessary infrastructure as well as operations and management.24 Non-governmental providers of both drinking water and irrigation water (i.e., private agents) have also been in existence

simultaneously (and in fact, are growing with increasing stress over the water situation).In that sense, private delivery of water services is not a new phenomenon. But the current controversy over privatization

arises essentially in the context of transfer of ownership of state-owned enterprises and it is on this that I will focus here.25 However, a strong meta narrative at the Fourth World Water Forum in Mexico in 2006 seems to have been that the government

was ‘back in’, and should take primary responsibility through its legislating, regulating, policy development, planning, andfinance-allocating roles (ODI, 2006).


restricted by the dominance of a very smallgroup of major companies in the internationalconcessions market, and renegotiation ofcontracts – which is essential to deal withchanging conditions – could impose highregulatory burdens on the government. Thereis also the dilemma that measures designed toreduce monopoly power reduce the potentialprofitability of private-sector companies, andtherefore would be difficult to put in place(Rees, 1998).

Note that in none of these forms of privatizationis the ownership of the water source itselfprivatized. How far the decision-making powers(about who gets access to water and theprecise nature of these rights) remains withthe state would depend upon the particularform of privatization, as well as the regulatoryframework put into place by the state alongwith its ability and willingness to enforce it.

The usual argument in favor of privatization ofwater services (whatever be the precise form)is that it will result in improved efficiency (forinstance, by reducing leakages and improvingbilling and collection). However, this is not anautomatic or necessary consequence ofprivatization. Further, it is not obvious a priori

that any form of privatization will result inimproved and more affordable access to water.The evidence of African and Latin Americancountries such as Guinea, Senegal, Bolivia,Argentina, and Peru indicates, on the contrary,that in many cases, even households that hadsome (even if limited) access to municipal waterbefore privatization suffered disconnectionsbecause of lack of ability to pay (Mehta, 2004).Hence in some Latin American countries,privatization of water triggered social discontentof an order that resulted in the overthrowingof governments.

A number of other arguments have also beenmade against privatization. First of all, privateparties are likely to be more interested in thelucrative parts of the water system (such asthe wealthier parts of urban areas) (Mehta,2003b). Rural areas, poorer urban areas, andthe more unprofitable functions of sewerageand waste water management are not likely tobe taken up. In fact, Barlow (2001) arguesthat since the provision of water services alonedoes not provide sufficient returns, watercorporations are actively pursuing exclusivecontrol over water service provision throughacquisition of infrastructure and water licenses

Table 1: FORMS OF PRIVATIZATION

Contract Service Management Lease BOT/ Concession Divestituretype contract contract BOO Contract

Asset Public Public Public Public and Public Private orownership private public and

private

Capital Public Public Public Private Private Privateinvestment

Commercial Public Public Shared Private Private Privaterisk

Operations Public and Private Private Private Private Privateand privatemaintenance

Tariff Public Public / Private Public Private Privatecollection private

Duration 1-2 3-5 8-15 20-30 25-30 Indefiniteyears years years years years (may be

limited bylicense)

Source: Bakker (2002) cited in Mehta (2004)


(Holland, 2005). Also, privatization contractsoften contain guarantees to compensate acompany if it incurs losses. Secondly,privatization of the water sector appears tohave worked best in those areas which hadbenefited from earlier state subsidies (Mehta,2000). In fact, private partners are often lesswilling to undertake the setting up of newinfrastructure, and would rather undertakeoperation and management of already existingsystems. Thirdly, in the specific context ofMNCs, exchange rate fluctuations can severelyaffect the financial models established formultinationals, as in the case of Manila andArgentina (Langford, 2005). There is also theissue of whether privatization will help in thelong run if all the expertise is developed withinmultinational water firms and no local capacityis developed (Langford, 2005).

To deal with at least some of these criticisms,two conditions have been suggested as beingcritical to the success of privatization – a clearregulatory framework and a democratic,transparent decision-making process.

Mehta (2004) emphasizes the need to have aregulatory framework in place prior toprivatization, so that commercial providers canbe subject to tariff regulations, qualitystandards, and other performance requirements.However, the mere establishment of such aframework does not ensure accountability, andbodies that are responsible for the regulationmay be subject to the same kind of pressures(for instance, from international bodies) asgovernments. The important question then iswhether governments are any better atregulating private operators than they were asdirect service providers. Further, as Mehta andMadsen (2003) argue, the ability of states toregulate private actors in the water sector andto explicitly support poor people’s waterconsumption is likely to be circumscribed evenmore in cases where future water privatizationsare undertaken under the General Agreementon Trade in Services (a point which I will discussin greater detail in Section 3.9). Also, regulationthat merely focuses on efficiency and growthmay not necessarily be committed to ensuringaccess to basic services or protecting accessof the poor to services (Mehta, 2004).

Ensuring that the equity impact of privatizationis positive is complicated by an additional factor.

The poorest groups often do not rely on

multinationals or even governments for waterdelivery. Excluded or not reached by formalwater systems, they usually buy water frominformal vendors or landowners with waterresources, often paying excessive prices andsubject to uncertainties (Langford, 2005). Howthese transactions would be affected by theprivatization of water delivery services is notobvious a priori. But the point is that reformsin the water sector tend to focus on the formalwater sector, while ignoring the fact thatregulation and monitoring is also needed in theinformal water sector, in addition to the needfor the poor to gain access to formal watersupply systems.

The second condition that could help tomitigate the negative consequences ofprivatization deals with the process by whichdecisions are made about when privatizationmust be undertaken, the particular form thatit should take in any given context, and thekind of rules that must be put in place to governthem. Ideally, this process should bedemocratic, which means that differentsections of society must be involved in theprocess, and it should be a transparent one.In fact, participation is a crucial aspect ofthe right to water, not just in the context ofprivatization efforts, but also with respect tohow water development is undertaken ingeneral. While this condition is mentioned in anumber of places, it has been absent in theprivatization process of most countries. Infact, Langford (2005) argues that the WorldBank appears willing to provide funding forpromoting participation, but not in helpinggovernments to conduct a proper public debateon solving water delivery problems.

In general, then, undertaking privatization in amanner that is consistent with goals of equityis not easy. Where does that leave us in termsof the ‘best’ kind of institutional structures toundertake delivery of water services? Therange of options that have worked successfullyacross the world show that a priori stands ofpublic only or private only are not always useful.Instead, focusing on context-specific case-studies could provide useful insights that aid inbringing about changes in the delivery of waterservices in desired directions, withoutnecessarily trying to scale up or replicate keyfeatures of successful cases. For instance, animportant example of a public model of servicedelivery which not only works efficiently and is


financially autonomous, but has also had apositive impact on poor people’s lives andlivelihoods is the Porto Alegre case in Brazil(Holland, 2005). The particular conditionspresent in this case (such as the strongassociational culture present in Brazil) mightnot be replicable elsewhere. But the experienceis useful in showing that opening up decision-making processes can lead to watergovernance structures that are pro-poor. Thereis also evidence of local management andfinancing that has been successful, both inrural areas as well as in metros. In Dhaka,Bangladesh, for instance, a workers’cooperative is now managing the city’s formerlyloss-making public water utility (Nadkarni,2005). The potential for public-privatepartnerships is exemplified by the case of Cato-Crest in Durban, South Africa, where asuccessful partnership took place without theintervention of big water utilities (Mehta,2004). In fact, although public-privatepartnerships are increasingly being advocatedas an alternative to purely public or privateprovision of water, it is important to keep inmind that a partnership has to be betweenequals; hence the concept of a partnershipbetween a municipality in a developing countryand a multinational corporation is problematic(Holland, 2005).

Apart from the trend towards privatization inthe post-1990s era,

26 the other important

change in the realm of delivery of water servicesis the trend towards decentralization (Mehta,2004). In the realm of water, for instance,management of canal irrigation is increasinglybeing handed over to user groups. Some regardthe management of water by user groups alsoas an instance of privatization. Othersemphasize the need to distinguish betweenmanagement by collective user groups andmanagement by corporate entities or privateoperators (whether formal or informal, includingNGOs) who are not themselves the recipients(or direct users) of water. Be that as it may,decentralization could potentially result in moreefficient and equitable water provision at thelocal level if local authorities were given thefinancial and institutional capacity to fulfill newresponsibilities, and equity requirements are put

in place a priori. However, decentralization isless likely to resolve the problem of regionaldisparities.

3.6 PRICING OF WATER

The question of pricing of water is perhaps theone that gets the most attention in any waterreform strategy. It is also one that is viewedmost often as conflicting with a right to water(see, for instance, Barlow, 2001). It would reallynot be possible to review here the vast amountof theoretical as well as applied literaturegenerated on the subject. What I propose todo in this section, instead, is to lay out themain issues involved in the question from thepoint of view of ensuring a right to water to all.

There are three major arguments made in favorof pricing of water – recovering costs, capturingthe ‘true’ value of water as a resource thathas multiple uses, and providing an incentivefor judicious use of water, although it is thegoal of cost-recovery that has received themost attention (TAC, 2000). In theory, all threegoals are important from the point of view ofefficiency, equity, and sustainability, andtherefore pricing of water need not be seen asconflicting with a right to water. For instance,the low price that many consumers of waterpay is believed to be one cause of itsunsustainable use, and this lack of sustainabilityin turn has implications for equity. Hence, someargue that the right to water should beinterpreted not to mean the provision of ‘free’water, but water that is affordable to all,including socially disadvantaged groups (Iyer,2003), though others continue to argue in favorof providing at least a certain minimum amountof water free of charge to all, and chargingonly for water supplied beyond this minimum(as in the case of the South African waterpolicy).

Similarly, without cost-recovery, states will nothave adequate funds to provide for theconstruction of new water supply andwastewater disposal facilities, as well as formanagement of existing facilities, especially inthe face of declining funds from internationalinstitutions (Biswas, 2005). Even if water as aresource is free, the services involved in its

26 It is also important to note that many multinational private water companies have now started to retreat from water servicescontracts and investments in developing countries in the face of high political and economics risks, shrinking profit margins (inpart due to currency instability), and increasing criticism affecting firms’ business image (UNESCO-WWAP, 2006).


delivery entail costs, at least in urban areas(Mehta, 2003b). Thus there is a cost inimpounding the water, bringing it from thereservoir to the purification plant, transportingit through distribution pipes, then collecting thedrainage, purifying it to some standard, andreleasing it again (Paranjapye, 2005). In fact,even in rural areas, treatment needed to makewater potable may involve costs.

But while the goals of pricing themselves cannotbe faulted, it is not obvious that increasingthe price of water will necessarily meet thesegoals; further, there are also alternativeinstruments that could either meet these goalswithout the negative equity consequences ofincreased pricing, or that could help to mitigatethe negative equity impact.

For instance, the argument (made most oftenby environmentalists) that water as a resourcehas been taken for granted and overused, andthat only pricing will help to understand itsreal value and to start conserving it (TAC,2000) is problematic because for affluentcustomers, higher rates do not necessarilytranslate into lower demand or more carefuluse of water. In the case of irrigation water incanal systems in Western India, for instance,Ray (2005) argues that the function of ensuringefficient irrigation or water conservation maybe more achievable through enforceableallocation rules (such as a per-hectare ration)that would make the scarcity value of waterimmediately obvious and change in the pricepolicy of agricultural output (e.g., reducinggovernment support prices for water-intensivecrops such as sugarcane) rather than throughhigher price of irrigation water. Further, mostof the discussion about water pricing centerson individual use, even though a largepercentage of water consumption in urbancenters is due to industrial and institutionaluse (Barlow and Clarke, 2002).

With respect to the goal of cost recovery,though pricing is more likely to lead to improvedreturns, such returns often come at theexpense of poor consumers, who are likely toend up curtailing their usage because theycannot afford it. One counter-argument madeto this is that the poor already pay high costsfor water to informal providers, and hence wouldbe willing to pay for formal access to water.But Mehta (2004) argues that the willingness-to-pay proponents treat households as black

boxes, ignoring the power dynamics withinthem, the naturalization of women’s water-related tasks, and the low opportunity costsattached to women’s time. For instance, Reddy(1999) shows how a house connection hasseemingly little appeal for many households inRajasthan; this is not just because of theexpensive installation charges, but also becausewomen and children, who face the drudgery offetching household water, have low opportunitycosts and do not control either their labor orhousehold income, whereas the men do notface the drudgery but would have to pay forinstallation charges. Hence any attempt to pricewater would have to take into account anumber of factors, including variations in agro-climatic zones, income levels of households,valuation of women’s work, and access to publicgoods. This in turn means that blanketassumptions such as the one that ruralhouseholds are willing to pay five percent oftheir income/expenditure for water (made whileformulating pricing policies for water) areuncalled for.

Acknowledging differences in willingness-to-pay is also important because it opens up thepossibility of discriminatory pricing or cross-subsidization (Reddy, 1999). In fact, this isthe usual instrument recommended to dealwith the question of affordability to the poor(see, for instance, Biswas, 2005). But cross-subsidies (whether across households oracross different uses of water such as drinking,irrigation, and industrial uses) are not easy toimplement. As the experience of public waterprovision (especially in urban areas) testifies,subsidies often end up benefiting higher incomegroups rather than lower income groups, andso the question of targeting of subsidies iscritical. Further, in the case of privatization ofwater services, firms may not be willing touse cross-subsidies because it wouldcompromise on their goal of profit maximization.For instance Llorente and Zerah (2003) pointout that higher prices for industry (in order tosubsidize drinking water for households in urbanareas) may lead to industrial users moving awayfrom municipal water to private sources ofwater.

Thus the problem of pricing water in a mannerthat it remains affordable, as well as enablescosts to be met, is a tricky one. When oneextends the question of pricing to social


services beyond water such as schooling,combining cost recovery with equity becomesan even more difficult tightrope to walk on(Hoering and Schneider, n.d.).

3.7 PARTICIPATION

The concept of a right to water, as well as arights-based approach, is relevant not only toparticular outcomes, but also to processes –both of policy-making and of implementationof policies and projects in the realm of water.This process dimension is what I refer to asparticipation. Ideally, this is something thatshould be woven into all the other dimensions;it has been included here separately only toemphasize its importance.

To give an example of the limited manner inwhich participation usually works, consider thecase of the demand-responsive approach inthe water sector in India,

27 which is the new

bottom-up approach put forward in the WorldBank’s current water policy. Firstly, there hasbeen no involvement of civil society groups inthe framing of the policy itself. As Hoering andSchneider (n.d.) point out, this is problematicbecause the fleshing out of rights andresponsibilities, as well as of frameworkconditions by the government, has aconsiderable influence on the prospects ofsuccess for the approach. Secondly, noinstruments are explicitly included to enablemarginalized sections of the population to be apart of decision-making processes about waterat the micro-level. Hence the possibility thatthe approach would help in overcoming existinginequities is very remote. In general, unlessthere is engagement with the micro discoursesof power, participation is hardly likely to besynonymous with empowerment (Ahmed,2005a). Further, it is important to note thatthe particular manner in which decision-makingis democratized could also have importantimplications for equity. Boelens and Zwarteveen(2005) point out that most communal watersystems in Peru, Bolivia, and Ecuador have aone-person, one-vote rule, but World Bankproposals for new water legislation stipulatethat voting rights should be made proportionalto the quantity of water-use rights that eachuser holds, which means that it becomes

difficult for smallholders to bring about desiredchanges. Thirdly, although participation inimplementation is called for in theory, it hasbeen insufficient in both quantitative andqualitative terms. The main motivation behindinvolving people in implementation seems to becost recovery, and not understanding what theirpriorities are at any given time. Ideally, as perthe logic of demand-based projects, if peopleare uninterested in house connections ormodern systems of supply, there should beopenness to providing low cost water throughstand post supplies and/or improving the watersources within the village (Reddy, 1999), butin practice this is often not the case.

The above examples are typical of how mostwater projects work. Hence a right to watershould explicitly engage with the question ofhow to make provision for participation indecision-making at all levels, particularly bymarginalized groups.

3.8 RELATION OF RIGHT TO WATERTO OTHER RIGHTS AND VISION OFDEVELOPMENT

Defining the right to water in any given contextwould not only involve understanding thedifferent elements that constitute it, but alsohow the relation between right to water andother rights works out. In fact, water conflictsthat arise because of competing claims ofdifferent water users or competing claimsbetween different uses often have to do withconflicts between right to water and otherrights. However, as we will see below, bothcomplementarities and conflicts are possiblebetween different kinds of rights.

In the discussion of the status of the right towater at the international level in Chapter 4, itwill become evident that the right to watercan be derived from rights such as those tohealth or food; that is, there arecomplementarities between them. However, theprecise manner in which the right to water isderived from these could also limit thiscomplementarity. For instance, the provisionof adequate food does not require localprovision of water (since food can be producedin distant locations and moved to the point of

27 In this approach, costs of water supply are to be borne by the users, decision-making powers are transferred to consumers,and investments are initiated by consumers according to their self-determined requirements.


demand) (Gleick, 1999), but local provisionmight still be important from the point of viewof food and water security (Bluemel, 2004).Similarly, rights to livelihood and housing couldhave mixed impacts on the right to water. Onthe one hand, if one sees the provision of waterfor economic needs as an integral part of theright to water, the relation between right towater and right to livelihood could becomplementary. On the other hand, a livelihood-enhancing activity could also impinge onsomeone else’s right to water. Examples of thisinclude an industry that generates employmentbut over-extracts water beyond sustainablelimits or pollutes an existing source of water.While this could seem like a classic‘development-environment’ conflict, in anyparticular case (such as the case of Plachimadadiscussed in Chapter 6), a variety of factorsare at play, making the decision about howbest to resolve the conflict or which rights tolegitimize a difficult one. Similarly, in the caseof informal settlements in rural areas, the rightto connect to public (or private) water systemsis often denied because local authorities areconcerned that providing water would legitimizethe informal occupation of the land. In fact,the link between housing and access to waterin urban areas parallels the link between landrights and water rights in rural areas (exceptthat land in rural areas is needed not just foraccess to water or housing, but very often formeeting livelihood requirements also).

Both in the context of the conflict betweenright to water and other rights, as well as inthe context of some of the elements of rightto water (such as how much water is neededto satisfy people’s economic needs), thequestion of what kind of development processone has in mind becomes important. This istrue not just in the obvious sense of whetherone adopts a water-intensive cropping patternor encourages water-guzzling industries orconsumption patterns, but also in the moreindirect connections between water and otherrealms. The discussion of the right todevelopment in Chapter 2 already points outthat although such a right can be the basis ofa right to water, it also raises questions aboutvarious dimensions of development such as theperpetuation of power inequities at different

levels. This in turn means that any discourseof right to water would need to engage notjust with water per se, but also other aspectsthat indirectly affect it. Thus the question ofparticipation of different sections of society inwater policy would need engagement withquestions of democratization and transparency(e.g., a focus on institutional structures andlegislative measures such as an effective Rightto Information Act) (Pant, 2003).

3.9 GLOBALIZATION AND RIGHT TOWATER

Globalization impacts the question of right towater via two routes. One route is when thewater policies of governments are affectedby the policies of international institutions byway of conditionalities for lending andstructural programs, as well as potentially byliberalization of trade in goods and services.The second (less studied) route is the impactof global forces that are external to the watersector, even though these are likely to shapewater use, availability, and managementpractices of the future in significant ways;these would include major developments inareas such as biotechnology, desalinization,information, and communication (Biswas,2005). The focus of this section will be on thefirst route.

In order to understand how water policies ofgovernments have been influenced by changesat the global level, it is useful to consider howviews regarding water have evolved in the lastthree decades. Mehta (2004) distinguishesbetween three phases with respect to theprocess of convergence of views on water.The first phase (between 1977 and 1992) sawthe consolidation of the water decade

28 and

the declaration of water as an economic goodat the International Conference on Water andthe Environment held in Dublin in 1992. Thesecond phase (between the Dublin Declarationand the Hague Conference in 2000) witnessedthe rise of the neo-liberal agenda both globallyand in water management, and the rolling backof the state through conditionalities of theIMF and World Bank, as well as regionaldevelopment banks such as the Inter-American Development Bank and the Asian

28 1981-90 was the WHO’s International Drinking Water Supply and Sanitation Decade.


Development Bank. The third phase refers toefforts in the twenty-first century on the partof supra-national bodies such as the WorldWater Council and the Global WaterPartnership, which are viewed by many asgiving a new impetus to private sectorinvolvement. The particular kind of waterdiscourse that emerged in each of thesephases is discussed further in Chapter 4. Butthese are not the only views that haveemerged; for instance, the idea of water as ahuman right has also been receiving increasingattention. However, the hegemony of particularinstitutions and ideologies at the internationallevel has meant that the idea of rights hasreceived far less attention; on the contrary,there is increasing convergence amonginternational and national players about thechanging role of the state (as being moreresponsible for regulation rather than forproviding water), the need for cost recovery,an enhanced role for the private sector, andthe need to draw in non-state actors in therealm of water (Mehta, 2004).

Perhaps the best example of how particularinternational institutions/discourses canshape water policies of national governmentsis given by the role of the World Bank in thewater sector. Hoering and Schneider (n.d.)analyze how the World Bank shapes nationaland international water policy by linking theaward of loans to strict conditionalities andby influencing the formation of opinion inwater debates. Until the early 1990s, theWorld Bank’s water policy was mainly gearedtowards providing financial support forinfrastructure provided by the state.However, since the 1990s, the central aspectof the World Bank’s water policy has beenthe notion of water as an economic good,resulting in its supporting water privatizationin developing countries. This position isevident in its 1994 ‘World DevelopmentReport’, and has been restated in itscontroversial 2003 ‘Water Resources SectorStrategy’. Similarly, the World Bank’s recentreport on the water economy of India alsofavors privatization. The demand-responsiveapproach advocated by the World Bank (andapplied, among others, in India and Sri Lanka)has also resulted in accelerating the state’swithdrawal from rural supply. Further, whilethe influence of the World Bank (along withthe IMF and other bilateral funders) has been

key in driving policy and reform processes inGhana, India, and Niger, public consultationhas been rare. The reason for this is nothard to guess: where public consultation tookplace (as in Brazil and the USA), privatizationtended to be resisted and public utilities werereformed significantly (Mehta, 2004). RecentWorld Bank efforts to increase privateownership of land are also a cause for someconcern, since access to land usuallydetermines access to water (Langford,2005).

Even when the idea of water as a humanright has some influence on particular nationalgovernments, the fact that these co-existwith other, more dominant views on waterresults in interesting contradictions, as thecase of South Africa shows. South Africa hasan explicit right to water in its constitutionas well as a Free Basic Water policy adoptedin 2001, which aims to provide a basic supplyof 6000 liters of safe water per month to allhouseholds free of charge. Both of these fitinto the discourse of water as a human right.But South Africa also adopted a fiscallyconservative Growth, Employment andRedistribution macro-economic policy in 1996,and cost recovery is an official policy of thegovernment. Fiscal conservation has meantthat grants and subsidies to localmunicipal it ies and city counci ls havedecreased; the result has been partnershipsbetween public bodies and the private sectorin the realm of water, which have had a mixedimpact, especially in terms of equity. Further,disconnections to non-paying consumers(especially in urban areas) are not uncommon,and have been linked by some to outbreaksof cholera and other gastrointestinal infections(Holland, 2005).

The role of international finance in the watersector is not just restricted to the conditionalfunding provided by international and regionallending institutions. Institutions such as the WorldBank have also financed and promoted largehydroelectric projects in spite of concerns abouttheir equity and sustainability impact; further,in many of the recent privatization projects (suchas in Brazil and Bolivia), the International FinanceCorporation division of the World Bank providescapital financing directly to major watercorporations (Barlow and Clarke, 2002).

Water policies of governments are also likely


to be affected by the efforts of the World TradeOrganization (WTO) to progressively eliminatetariff and non-tariff barriers to trade in orderto ensure the free flow of capital, goods, andservices across national borders.

29 There are

two international trade agreements which canaffect water – the General Agreement on Tradeand Tariffs (GATT) and the General Agreementon Trade in Services (GATS). Under GATTrules, water is a tradable commodity, so thatrestrictions on imports and export of waterare prohibited. Cross-border trade in wateris already acquiring importance, as in the caseof the export of fresh water from Canada tothe USA. Even though there is some provisionfor restrictions that are necessary in orderto protect the environment (for instance, notimporting water that has been extracted in away that is destructive to watersheds), inpractice, its use is often overruled by usingthe clause that the restriction is a disguisedbarrier to trade. This in turn means that theinterests of corporate players promoting waterexports receive precedence. Further, whiletrade in water between water-rich countriesand water-poor countries is sometimes putforth as a solution to problems of waterscarcity, Barlow and Clarke (2002) point outa number of problems with this measure.Firstly, since the motive of any commercialexchange would primarily be profit, it is veryunlikely to reach those who need water themost, but are not able to pay for it.Secondly, external dependence for a crucialresource such as water is not desirable.Thirdly, commercial water exports wouldperpetuate the assumption that the problemsin the water sector can be resolved byfurnishing an increasing supply of water.

The second trade agreement under which wateris likely to be affected is the GATS. Mostwater-related services are currently notincluded in the GATS’ services sectoralclassification list (exceptions are sewageservices and wastewater). However, attemptsare ongoing (particularly in the EuropeanCommission) to include water collection,purification and distribution services alsounder environmental services. Tradeliberalization under the GATS essentially refers

to (i) the equal market access principle whichprohibits limitations in the participation offoreign service providers (and foreign directinvestment) unless specifically listed in acountry’s ‘schedule of specific commitments’and (ii) the national treatment principlewhereby governments can elect either totreat foreign services and service suppliersin the same way as domestic services andservice suppliers, or include limitations in theircommitments to favor the latter (Newborneand Slaymaker, 2005). While in principle,countries are free to decide whether and howfar to open sectors to foreign competition,there is indirect pressure on developingcountries. For instance, members try topromote their foreign investment interests byexerting influence through their aid programsto facilitate commercial presence of a foreigncompany in a country. The December 2005Hong Kong negotiations (which was part ofthe Doha round) imparted a new momentumto the negotiations on services (includingenvironmental services), with a decision madeto achieve a progressively higher level ofliberalization in services and intensify thenegotiations to that end (Dubey, 2006).

30 How

far these attempts are a result of the beliefthat liberalization of water services can be asolution to the financial difficulties ofdeveloping countries and improve efficiencyof water services, and how far they are aresult of successful lobbying by Europeanwater giants such as Vivendi and SuezLyonnaise des Eaux, is debatable. Further,even if liberalization can result in gains aslong as certain regulatory mechanisms (suchas legislative measures) are in place tosafeguard the interests of the poor, Mehtaand Madsen (2003) argue that extending thecoverage of the GATS to water-relatedservices would undermine the ability ofmember-states to introduce such measures.Interestingly, even though the United NationsHigh Commissioner for Human Rights notesseveral potential conflicts between serviceliberalization and the realization of humanrights, it also contends that the progressiveliberalization of trade in services can go handin hand with the progressive realization of

29 The discussion in this section draws heavily on Barlow and Clarke (2002).30 However, in July 2006, the Doha round of the negotiations of the WTO collapsed.


human rights under certain conditions.

3.10 CONCLUSION

The discussion of different dimensions of rightto water in this chapter helps to bring out thecomplexities involved in even conceptualizingthe right. It also lays the ground for the analysisin the subsequent chapters, of how right to

water works out in the international arena(especially in the context of the human rightsregime), in the legislation of India andMaharashtra, as well as in civil society initiatives.In each case, I consider how the differentdimensions discussed in this chapter are dealtwith (or not), and how this in turn influencesthe working of the right in actual practice.


CHAPTER 4

RIGHT TO WATER AT THE INTERNATIONALLEVEL AND IN INDIA

4.1 INTRODUCTION

Having laid out the background for this studywith the discussion of rights-based conceptsand of different dimensions of a right to waterin Chapters 2 and 3 respectively, Chapters 4through 6 actually analyze how the right to waterplays itself out at different levels. The focus ofthis chapter is the evolution of the right to waterin the human rights regime at the internationallevel, the legal status of right to water in India,and the shaping of different dimensions of theright by India-level laws and policies.

At the international level, discussions of waterhave been shaped by a number of discourses,of which the idea of water as a human right isonly one. I start by briefly summarizing thesedifferent discourses, before moving on to theevolution of the right to water in the humanrights discourse. Even within this discourse,there are differences of opinion about thevarious elements that comprise a right to water.My focus will be on the view taken by themost recent (and most explicit) formulation ofwater as a human right viz., General Comment15 of the United Nations Committee onEconomic, Social and Cultural Rights adoptedin 2002, and the guidelines for the realizationof the right put forth in the 2005 Report of theSpecial Rapporteur of the United NationsCommission on Human Rights.

At the India-level, I set the background forthe discussion of right to water by brieflydiscussing the human rights situation as wellas the general water situation in the country.The legal status of ‘right to water’ is thendiscussed by focusing on constitutional supportfor the right to water, followed by an analysisof how the contours of such a right are actuallyshaped by water-related policies, legislation,and judicial judgments at the India-level.

4.2 WATER DISCOURSES AT THEINTERNATIONAL LEVEL

In Chapter 1, I discussed how rights discourseshave acquired growing importance in the last

two decades in a variety of realms, and howthe concept of right to water is one of theimportant articulations of rights in the contextof water. However, this discourse is neither theonly one, nor the most dominant. There arethree other formulations of water in theinternational arena: the Dublin-Rio principles,the advocacy of water markets andprivatization of water services by the WorldBank and the Asian Development Bank, and theapproach of ‘Integrated Water ResourcesManagement’ propagated by the Global WaterPartnership and the World Water Council (Iyer,2005a).

Perhaps the discourse which has almostacquired hegemonic status (in terms of itsinfluence on the thinking and practice of a widevariety of actors including governments) is theformulation in the Dublin-Rio principles. TheDublin principles were endorsed at theInternational Conference on Water andEnvironment held in Dublin in the run-up to theRio Earth Summit in 1992. The DublinDeclaration highlighted four key principles – theimportance of freshwater as well as itsfiniteness and vulnerability, increasedparticipation of users, planners and policy-makers at all levels of water development andmanagement, the central role of women in theprovision, management, and safeguarding ofwater, and the recognition of water as aneconomic good, with an economic value in allits competing uses (Gleick, 1998). Theseprinciples significantly contributed to theAgenda 21 recommendations adopted at theUN Conference on Environment andDevelopment in 1992, although unlike the Dublinprinciples, Agenda 21 emphasized that wateris an economic and social good (TAC, 2000).

The advocacy of water markets and theprivatization of water services by the WorldBank and the Asian Development Bank is basedpartly on the Dublin-Rio characterization ofwater as an economic good, but is also relatedto the rise of neo-liberalism and the consequentreduction sought in the role of the government


in the provision of basic services (Mehta, 2004).Although market remedies and privatizationsolutions for water problems are believed bysome (especially donor countries) to becongruous with rights of the poor to water(Mehta and Madsen, 2003), on the whole, theidea of water as an economic good and of watermarkets has generated considerablecontroversy, particularly in its implications forpricing (Mehta, 2003b).

The third discourse which is becoming importantin recent times is the idea of integrated waterresource management (IWRM). The concepthas been introduced (to varying degrees) inthe water policies of a number of countriessuch as South Africa, Uganda, and Brazil. Butwhile the concept of IWRM is an advance overearlier sectoral and fragmented approaches ofwater management in some respects, it hasalso been critiqued on a variety of grounds (interms of both conceptualization andimplementation). For instance, Iyer (2005a)argues that IWRM continues to be influencedby old-style engineering-based thinking, andhas a built-in bias towards centralism andgigantism due to its emphasis on integration ofmultiple processes. There is also a lack of clarityabout who is in charge of integration, the rolesand responsibilities of governments, the privatesector, civil society, and the internationalcommunity, how to ensure that differentinterests are reflected in IWRM plans, and howto resolve conflicting interests and disputes(UNESCO-WWAP, 2006). The questions ofintegration of land and water governance, asalso whether all water issues need integration,have also not received adequate attention.

It is important to note that the two organiza-tions that have most actively propagated IWRM– the Global Water Partnership (GWP) and theWorld Water Council (WWC) – have also beensubject to criticism. The GWP is an action-oriented network of organizations interested inwater issues, with a mission to transform theDublin principles into practical tools for solvingwater problems at the local and regional level.It was formed in 1996 by the World Bank, theUNDP, and the Swedish InternationalDevelopment Cooperation Agency. Its principaloperating arm is the Technical AdvisoryCommittee (TAC). The WWC is an internationalthink-tank founded in 1996 to promoteawareness on critical global water issues. Themembers of the WWC include representatives

of business, government ministries, academiccenters, multilateral financial institutions, UNagencies, and local governments. Its majoractivity has been the organization of thetriennial World Water Forums, which havebecome an important platform for the globaldebate on water resources. However, theseForums have been criticized as representingmainly the interests of transnationalcorporations and industrialized countries,especially because the founders of WWC includeexecutives from multinational water companies(Gleick, 1998).

The emergence of the rights discourse (andmore particularly the idea of right to water) atthe international level is discussed in thesubsequent section. However, two points needto be noted here. Firstly, a variety of concurrentfactors have led to a growing focus on theidea of right to water. These include thegrowing importance of the rights approach ingeneral, the continuing lack of access of manyparts of humankind to water even for basicneeds in spite of a variety of developmentinterventions in water, problems of sustainabilityof water as development processes all overthe world result in over-extraction and/orpollution, and the emergence of water (andother natural resources) as new arenas ofconquest and control at all levels. Secondly,the rights discourse has engaged (or has hadto engage) with the discourse of water as aneconomic good and the advocacy of watermarkets and privatization; for instance, inanalyzing the implications of pricing of wateron equity of access to water. However, thereverse has not been true. That is to say, theactors most involved in propagating thedominant discourse exemplified in the Dublin-Rio principles (institutions such as the WorldBank) have not engaged with the discourse onright to water in any meaningful fashion(Hoering and Schneider, n.d.).

4.3 RIGHT TO WATER AT THEINTERNATIONAL LEVEL

At the international level, the idea of a right towater has been most discussed in the humanrights context. Right to water is not fully definedby existing international law or practice;however, it is implicitly and explicitly supportedby many human rights instruments (Gleick,1999). Implicit support for the right to water isprovided by other human rights such as those


to food, health, adequate housing, well being,and life, since water is necessary to securethese rights. The so-called third generationhuman rights – the right to development, theright to environment, and the right to peace –also provide a basis for the right to water(Sadeq, 2005). For instance, the 1986Declaration on the Right to Development hasthe provision that states should ensure equalityof opportunity for all in their access to basicresources, education, health services, food,housing, employment, and the fair distributionof income (UN, 1986, Article 8(1); italics mine).

Further, as evident in the discussion in Chapter3, which right the right to water is derivedfrom has an impact on how the variousdimensions of a right to water work out. Forinstance, the amount of water supported bythe right to life is the bare minimum necessaryto support life, and does not ensure watersufficient for personal consumption or even forall forms of hygiene, whereas the right to healthwould ensure not only access to clean andsafe water to drink, but also water to assist inthe disposal and cleanup of waste, and theprotection of existing bodies of water fromcontamination (Bluemel, 2004). The two rightswhich have been interpreted most often (forinstance, in Alvarez, 2003 and Bluemel, 2004)to encompass a right to water, and which figureprominently in all basic international human rightsinstruments, are right to life and right to health.Two human rights instruments also explicitlymention the right to water: the 1979Convention on the Elimination of All Forms ofDiscrimination Against Women (CEDAW), whereit is mentioned as a part of a right to adequateliving, and the 1989 Convention on the Rightsof the Child (CRC), where provision of cleandrinking water is mentioned as a means tocombat disease and malnutrition. The right towater is also enshrined in one regional treaty –the African Charter on the Rights and Welfareof the Child.

However, the most explicit formal adoption ofthe right to water as an independent humanright is in the General Comment

31 15 adopted

in November 2002 by the United NationsCommittee on Economic, Social and CulturalRights. The document provides guidelines for

state parties on the interpretation of right towater under two articles of the ICESCR – Article11 (the right to an adequate standard of living)and Article 12 (the right to health). While theGeneral Comment is not legally binding on the146 states that have ratified the InternationalCovenant, it aims to assist and promote theimplementation of the Covenant and does carrythe weight and influence of ‘soft law’(UN, 2004).The 2002 General Comment has also beensupplemented more recently by the 2005 draftguidelines for the realization of the right putforth in the Report of the Special Rapporteurof the United Nations Commission on HumanRights. These guidelines highlight the main andmost urgent components of the right to water,without attempting to provide an exhaustivelegal definition of the right. They emphasizethe right to water for personal and domesticuses, in order to realize the right to adequatenutrition and the right to earn a living throughwork (UNESC, 2005). Since these twodocuments together constitute the mostcomplete articulation to date of the idea of aright to water in the human rights discourse, itis useful to briefly consider how they engagewith the different dimensions discussed inChapter 3. But before turning to this, I wouldlike to briefly mention the support that the ideaof right to water has outside the domain ofhuman rights viz., in other international law anddeclarations.

Outside the domain of human rights, supportfor the right to water is offered by internationalhumanitarian law applicable in armed conflicts(e.g., in the 1977 Protocols to the GenevaConventions) and by internationalenvironmental law instruments (Bluemel, 2004).For instance, the UN General Assembly’s 1997Convention on the Law of the Non-navigationalUses of International Watercourses holds thatin the case of a conflict between uses of aninternational watercourse, special regard shouldbe given to the requirements of vital humanneeds (UN, 1997, Article 10(2)). Further, aseries of international environment or waterconferences (beginning in the 1970s) also tookup the issue of access to basic resources andright to water. For instance, the United NationsWater Conference held in Mar del Plata,

31 General Comments issued by ECOSOC are non-binding interpretations of ICESCR rights and obligations, but may be relied uponby various international bodies when deciding whether a state has met its obligations under ICESCR (Bluemel, 2004).


Argentina in 1977 agreed that all peoples havethe right to have access to drinking water tomeet their basic needs. The concept of meetingbasic water needs was also emphasized duringthe 1992 Earth Summit in Rio de Janeiro, Braziland expanded to include ecological water needs(Gleick, 1999). The 2002 JohannesburgDeclaration on Sustainable Development calledfor speedily increasing access to basicrequirements such as clean water. However,while the importance of water to satisfy basichuman needs and the idea of water as a righthas been present in many water conferences,consensus on an explicit right to water bygovernments has been difficult to come by.This is most evident in the ministerialstatements at the World Water Forums, whichrecognize only the idea of water as a basicneed and not the idea of water as a right,even when the latter has been debated in theForum (as in the case of the declaration atThe Hague in the Second World Water Forumin 2000). This, in turn, is a possible reflectionof the lack of hegemony of rights-baseddiscourses in water (discussed in the previoussection). In fact, the dynamics in the mostrecent Forum (the Fourth World Water Forumat Mexico held in March 2006) are particularlyinteresting in this regard. The Forum had anumber of sessions on the question of right towater, and the rights narrative was linked toquestions of local empowerment and localknowledge (ODI, 2006). The Ministerialstatement (which is a non-binding documentsigned by government representativesattending the Forum) also reaffirmed thatgovernments had a primary role in improvedaccess to safe drinking water, basic sanitation,and sustainable and secure tenure throughimproved governance at all levels as well as anappropriate enabling environment and regulatoryframeworks; further, they should adopt a pro-poor approach and have active involvement ofall stakeholders. While this could potentially beconstrued as the beginning of a reference to aright (ODI, 2006), the lack of an explicitreference to water as a human right has alsobeen critiqued by many activists (Cevallos,2006). Although many delegates said that theyagreed with the principle, some argued that itwas not feasible to include it in the final

declaration, because it could generate legalproblems at the national and international level.The ‘compromise’ reached was the inclusion ofan annex in the Ministerial Statement thatexpresses a dissenting view held by thegovernments of Bolivia, Cuba, and Venezuelaas well as by activists taking part in a parallelcivil society forum, stating unequivocally thataccess to water is a fundamental human right.This stand was endorsed by the United NationsEducational, Scientific and CulturalOrganization, which said that nations that aresignatories to UN treaties have a ‘moralobligation’ to consider water as a human right(Cevallos, 2006).

I now turn to the different dimensions of theright to water as articulated in the 2002 GeneralComment and additions by the 2005 draftguidelines.

Normatively, the right consists of both freedomsand entitlements.

32 Freedoms include the right

to maintain access to existing water suppliesnecessary for the right to water, and the rightto be free from interference (e.g., the right tobe free from arbitrary disconnections andcontamination of water supplies). Entitlementsinclude the right to a system of water supplyand management that provides equality ofopportunity for people to enjoy the right towater (UNESC, 2002: Clause 10).

In discussing the scope of the right to wateras well as the duties and obligations imposedby it, the Comment and the guidelines are fairlycomprehensive. They discuss the factorsinvolved with respect to the questions ofavailability, quality, and accessibility of water.In terms of availability, although the need forwater for farming and other productive uses isreferred to, the focus of the Comment is onextending individual access to water forpersonal and domestic uses. In fact, the 2005draft guidelines focus exclusively on the rightto drinking water and sanitation. In terms ofaccessibility, the Comment discusses not onlyphysical accessibility and economic accessibility,but also non-discrimination against marginalizedareas or groups, and access to information onwater issues (UNESC, 2002: Clause 12). In fact,the emphasis on non-discrimination (including

32 ‘Freedoms’ and ‘entitlements’ are the terms used by the General Comment. This is equivalent, in legal terminology, to negative andpositive rights (for a brief distinction between the two, see Footnote 4 in Chapter 2).


on the basis of housing and land status) andequality (including equity across generations)is found throughout the Comment as well as inthe draft guidelines. Further, the Comment andthe guidelines also emphasize sustainability ofwater and efficiency in water use, and suggestmeasures to attain these. An important featureof the discussion of availability, quality, andaccessibility is that there is space for variationsin these. For instance, the guidelines point outthat water-quality standards should give priorityto the elimination of pollutants with the mostsignificant impact on health in a particularcountry or context, rather than to the settingof high thresholds that cannot be attainedimmediately within the available resources(UNESC, 2005: Clause 7.2).

The Comment provides for a major role for thestate; it also emphasizes that non-state actorsshould take necessary steps to realize the rightto water (or at least not to thwart it). Forinstance, while it has refrained from declaringthat private sector participation in waterprovision is contrary to the right to water, sothat states have flexibility in choosing theireconomic system, it does emphasize the needfor democratic private sector participation, aswell as for regulation by the state (Langford,2005).

The Comment also explicitly calls forinternational organizations (including thoseconcerned with trade and finance such as theWTO and the World Bank) to take the right towater into account in their programs (UNESC,2002: Clause 60), thereby implicitly concedingthe impact that the working of theseorganizations has on different dimensions ofwater.

However, the main drawback of the Commentand the guidelines is that there is not enoughdiscussion of the controversial aspects ofownership, delivery, and pricing of water. Thuswhile the Comment emphasizes that watershould be treated as a social and cultural good,and not primarily as an economic commodity(UNESC, 2002: Clause 11), the implications ofthis for reduction in subsidies in the water sectorand the role of the private sector are not fullyconsidered. There is also some discussion inthe Comment of the dimension of affordabilityof water, and that investments in water shouldnot disproportionately favor expensive watersupply services and facilities that are often

accessible only to a small, privileged fractionof the population. In fact, the 2005 guidelineslay out specific measures to ensure affordabilitysuch as flexible payment schemes, cross-subsidies from high-income users to low-incomeusers, as well as taking into account a person’sability to pay before reducing a person’s accessto water (UNESC, 2005: Clauses 6.1 – 6.4).But the tension between meeting costs andfinancing a right to water, on the one hand,and affordability to all groups, on the otherhand, is not considered.

Further, when one considers the questions ofconflicts between different uses and users ofwater, and the kind of vision of development(including the meaning of participation) thatshould underlie water policies, the lacuna in theComment and the guidelines is particularly glaring.

These drawbacks mean that the UN’s conceptof a right to water as articulated in the GeneralComment and guidelines is not comprehensiveand decisive, although, as Langford (2005)argues, it is still useful to have such a rightput out in the public domain. Ultimately, though,it is at the level of the nation-state that manyof the questions raised above would have tobe addressed. Hence I now turn to theparticular context of India.

4.4 RIGHT TO WATER IN THE INDIANCONTEXT: AN INTRODUCTION

The right to water is treated diversely in nationallaws. While many countries do not have thisright in their laws, there are also examples inwhich the right is placed in the constitution(such as South Africa and Uganda), othersthat have included provisions in their nationalconstitutions defining water as a public goodand legislating for fair and equitable access(such as Ethiopia, Guatemala, Gambia, andPanama), and also those where specific lawshave been enacted on the subject (such asthe Safe Drinking Water Act of 1974 in theUnited States which directs the Human HealthSub-Committee of the United StatesEnvironmental Protection Agency to ensurethat both public and non-community watersystems meet minimum standards forprotecting public health) (Alvarez, 2003; CESR,2003). But South Africa is probably the onlycase where an explicit right to water in theconstitution is matched with an explicit right inimplementing legislation.


In India, the right to water is not explicitlystated in the constitution, although a largenumber of enactments regarding water andwater-based resources have been passed (forinstance, on the issues of water supply fordrinking purposes and irrigation). However, theright is implicit, in that Indian courts haveinterpreted the constitutional right to life asincluding the right to clean and sufficient water.

However, the constitutional status of a right isone thing, and incorporation of the right inpolicies, laws, and programs quite another. Inthe case of water, there is the addedcomplication that water is basically a statesubject, so that the working of the right towater would depend to a large extent on themanner in which individual states incorporatedifferent dimensions in their respectivelegislations. At the same time, central-levellaws and policies do influence how statesactually do this. While the precise nature ofthis influence is discussed later in this chapter,it is useful to lay out at this point how thedivision of labor between the centre and thestates works.

In the constitution, the primary entry relatingto water is Entry 17 of List II in Schedule 7i.e., the state list category. This means thatstates have control over water supplies,irrigation and canals, drainage andembankment, water storage, and hydro-electric power. The power of states is limitedonly by Entry 56 of List 1 (the union list),which gives the central government powersto regulate and deal with inter-state riversand river valleys to the extent declared bythe Parliament by law to be expedient in thepublic interest, and by entry 57 of the samelist, which gives the centre the sole power toregulate fishing and fisheries beyond territorialwaters (Singh, 1992). However, the centre-state relationship is far more complex thanthe constitutional arrangement may make itseem (Singh, 1992; Iyer, 2003). One reasonfor this is that although water resources areat the disposal of the states, it is the centrewhich allocates the revenues for developmentpurposes. For instance, while stategovernments are responsible for implementingdrinking water schemes, these often getfinancial and technical support from the centralgovernment. Secondly, major and mediumirrigation, hydropower, flood control, and

multipurpose projects have been subjected tothe requirement of environmental clearance(as well as forest clearance, if forest land isinvolved in the project) for inclusion in thenational plan since 1978 (when the Ministryof Environment and Forests was created); priorto that, central clearance was needed only interms of technical feasibility and economicviability (Upadhyay and Upadhyay, 2002). Thisrequirement has been strengthened with thepassage of the Forest Conservation Act of1980, the Environmental Protection Act of1986, and the Environmental ImpactNotification, 1994. For instance, under the EIA,environmental clearances are mandatory forall new projects and expansion/modernizationof existing projects in thirty-two sectors thatare considered highly polluting or with highimpact on the environment and people. Thuswhile how a right to water works out in anygiven state is certainly affected by the policiesand legislation regarding water and relatedsubjects of that particular state, it is alsoaffected by national-level policies andlegislation.

But before considering either the constitutionalstatus of right to water or how central levelpolicies and legislation shape differentdimensions of right to water in the states, itwill be useful to briefly consider the rightssituation as well as the water situation inIndia.

4.4.1 Human rights in India

The only form of rights with which the Indianstate has explicitly engaged is human rights;other formulations of rights such as rights-basedapproaches or the Sen-Nussbaum concept ofentitlements have been taken up only insofaras they form the mandate of funding agencies.Hence the discussion here focuses on the statusof human rights legislation in India.

In the Indian context, human rights “meansthe rights relating to life, liberty, equality anddignity of the individual generated by theconstitution or embodied in the InternationalCovenant and enforceable by courts of India”(Section 2(1)(d) of The Protection of HumanRights Act, 1993, cited in Chakraborty, 1999:251). Thus in theory, both international lawand constitutional law form the basis of humanrights in India.

India has ratified five of the six international


covenants (ICCPR, ICESCR, CRC, CEDAW, andCERD)

33 and the conventions that constitute

the legally binding international human rightstreaties. India has also established the NationalHuman Rights Commission (linked to the UnitedNations Commissioner on Human Rights) as wellas State Human Rights Commissions under theProtection of Human Rights Act of 1993. Butimplementation remains poor, despite the newpolicy papers and the documents of the PlanningCommission of India increasingly using (human)rights language.

34 In fact, India has opted out

from the jurisdiction of all UN Treaty Bodies,thereby ruling out the possibility for Indian citizensto approach and make use of these mechanismsby making individual complaints (Kumar, 2006).It has also not maintained a good record ofreporting to the Human Rights treaty bodies(Marks, 2004). Hence in practice, more thanthe international treaties, it is the constitutionof India that has formed an important basis ofhuman rights discourse in the country.

It has also been aided in this by the view thatthe constitution is not just an instrument ofgovernance, but also an agenda for socialtransformation (Sethi, 1998). Further, bothclass-based social movements as well as theso-called New Social Movements, irrespectiveof whether they explicitly articulate theirstruggles in the language of human rights ornot, have played an important role in enlargingthe content of rights, creating greaterawareness of rights and at times procuringrights to those excluded from them (Mohanty,1998). The role of social movements/civilsociety initiatives in the context of human rightsin general, and right to water in particular, willbe discussed further in Chapter 6. Here I willfocus on the role of the constitution in thecontext of human rights.

Human rights are found in two parts of theconstitution. Civil and political rights areincorporated under the category of FundamentalRights in Part III of the constitution (articles 12to 35), while economic, social, and cultural rights

are incorporated under the Directive Principlesof State Policy in Part IV (articles 36 to 51).While the fundamental rights are justiciable, thedirective principles are not; the state is onlysupposed to strive to achieve the latter throughappropriate legislative and administrativemeasures (Singh, 1999). However, various courtshave held that the recommendatory nature ofdirective principles cannot be a reason for notholding the state responsible for theachievement of those principles. The significanceof the directives is evident from theconstitutional clause which says that “the Stateshall, in particular, strive to minimize theinequalities in income, and endeavor to eliminateinequalities in status, facilities and opportunities,not only amongst individuals, but also amongstgroups of people residing in different areas orengaged in different vocations” (Article 38,Clause 2, inserted by the Constitution’s 44thAmendment Act 1978).

35

The scope of human rights provided in theconstitution has also expanded considerably inthe last two decades (i.e., since the 1980s)due to judicial activism of the Supreme Courtinitiated by Justice V R Krishna Iyer and JusticeP N Bhagwati. A number of changes have beenbrought about in conventional litigation.

Firstly, fundamental rights have been liberallyinterpreted in various cases, expanding theirscope and content. The interpretation of theconstitution has followed what Singh (1999)calls the “social justice approach”, where thetext is provided with a contextualist referenceto the basic philosophy of the constitution.This has resulted in a number of importantverdicts on prisoners’ rights, rights of landlesslaborers and release of bonded laborers, as wellas a creative expansion of the scope of Article21 of the constitution. Article 21, which is afundamental right, says that “no person shallbe deprived of his life or personal liberty exceptaccording to procedure established by law”.This negative right to life has been interpretedin a number of court judgments to mean the

33 CAT has been signed by India, but not yet ratified.34 In part, this is because of a weak enforcement mechanism; for instance, the National Human Rights Commission (NHRC) is

required to intimate the state government concerned before it makes its monitoring visit and can only recommend payment ofcompensation to victims of violations of human rights after the completion of inquiry. Amendments were proposed to the 1993Act (by NHRC in 1994, and by the Ahmadi Committee in 1999) in order to increase the autonomy and competence of NHRC, but itis only now (in the monsoon session of 2006) that they are going to be tabled in Parliament (Sripati, 2006).

35 Citation from online version of Constitution of India, Website of Government of India, Ministry of Law and Justice, LegislativeDepartment (http://indiacode.nic.in/coiweb/welcome.html).


right to live with dignity, which in turn includesthe right to livelihood, right to education, rightto health, and right to water. Thus a fundamentalright (which in the Indian context, includes onlycivil and political rights) has been expanded tomake economic and social rights (such as healthcare, food security, elementary education, andwater) also justiciable.

Secondly, judges now often go beyond the givingof judgments and issue specific directions forexecutive action (and sometimes even monitorthe progress of action) (Iyer, 2006). Thirdly,the concept of Public Interest Litigation (PIL)was articulated in the late 1970s by the SupremeCourt. Individuals or organizations were permittedto approach the courts ‘in the public interest’on behalf of those unable to do so themselves.While the initial phase of PILs (late 1970s andearly 1980s), focused on civil and political rights,the second phase (from the mid-1980s to date)has seen a greater inclusion of economic andsocial rights too (Marks, 2004).

The growth of judicial activism in the countrycan be attributed to a number of factors –progressive legislation, a sensitive judiciary, andactive social action groups and movements thatsought the intervention of the judiciary topressurize the government to fulfill the rights ofthe marginalized (Marks, 2004). However, thereare also limits to judicial activism. For instance,the judiciary has not been able to adequatelyaddress situations of conflict of rights (e.g., incases relating to environmental protection) ordeal with the question of overuse and misuse ofresources. The ubiquitous problem ofimplementation and a piecemeal approach (viz.,the absence of a comprehensive systematicreform) also limits the effectiveness of judicialdecisions (Marks, 2004). In fact, the extent towhich the judiciary can (and should) expandconstitutional law and enter the realms of policy-making and executive action has been a matterof some controversy, as also has the sometimesindiscriminate use of PILs (Iyer, 2006). Forinstance, the Supreme Court’s support of aparticular technical solution (the use ofCompressed Natural Gas or CNG) in responseto a PIL filed by the Centre for Science and

Environment on the problem of air pollution inDelhi, is questionable (Iyer, 2006).

The result is that even today, economic, social,and cultural rights are not necessarily reflectedin policies, programs, and budgetary allocations,in spite of government claims to protect atleast some of them. This is true in the case ofthe right to water too, as will be evident in thesubsequent sections.

4.4.2 General water situation in India

I now turn to the current water situation inIndia.

36 The discussion will bring out the fact

that the right to water, even when interpretedin the narrow sense of just access to drinkingwater and water for basic household needs (i.e.,without bringing in the question of water forlivelihood requirements or for the environment,and other dimensions of right to water), hasnot been met in the Indian context. While thisis often attributed to lacuna in ‘implementation’,the problem is more deep-rooted in that themanner in which existing policies, legislation, andprograms have been formulated is itselfincommensurate with a right to water.

Before turning to the actual discussion, it isimportant to note that there is a paucity ofreliable data for most aspects of water. In thecase of drinking water, for instance, WaterAid(2005) points out that there is a lack of acommon definition of coverage, as well as alack of inclusion of functionality, usage, quality,and sustainability aspects in the data. If onebrings in more complex dimensions of a ‘rightto water’ such as water for livelihoods andconflicts between different livelihoodpossibilities, or the issue of pricing, the lacunaein data become even more stark.

4.4.2.1 Drinking water situation

Let me start with the drinking water situation.37

As per the Department of Drinking Water Supply(DDWS), rural water coverage stood at 94percent of rural habitations

38 in early 2004.

However, there is a difference between thenumber of habitations considered ‘fully covered’and the number with coverage plus use plussustainability. That is, this number does not

36 The major uses of water in India are agriculture, domestic use, industry, and power generation. My focus in this section will beon drinking water (which is often a subset of, though used synonymously with, domestic use) and irrigation.

37 This discussion of the drinking water situation at the India level draws heavily on WaterAid (2005).38 Habitations are defined by DDWS to include hamlets, settlements, and other habitations as per the revenue classification of a

village (WaterAid, 2005: 19).


take into account non-functional or unusablewater sources, increasing problems of waterquality or poor maintenance leading to defunctinfrastructure, and seasonality.

39 In fact,

studies which have taken into account issuesof sustainability, water quality, and seasonalityhave arrived at much lower coverage levels(WaterAid, 2005).

In urban areas, the coverage of drinking waterwas reported to be 91 percent in the 55thround of the National Sample Survey in 1998-99. Data showing urban water coverage is evenmore problematic as urban slum population isseverely underreported, and calculations oftenjust divide total water available in an area bytotal population, without taking into accountinequity in water distribution. Among the majorproblems in the urban drinking water sectorare poor quality, regular shortages in supply(which in turn leads to contamination), weakinfrastructure, high leakages (as high as 25-50percent), and inequity in distribution (WaterAid,2005). Further, although water tariff is low dueto cross-subsidization, subsidies directed to thepoor often do not reach them because the poormay not be linked to public supply lines.Sustainability is also becoming an importantissue, with groundwater resources in and aroundurban centers being tapped not only by publicwater authorities, but also by private watersuppliers. In fact, there are numerous instancesof metros, state capitals, and large citiessecuring heavily subsidized water from ruralareas, creating scarcity in the rural areas fromwhere the water is taken (WaterAid, 2005).

Apart from the problems in public provision forwater, it is also important to note the problemswith private operators in the water sector. Whileprivate water suppliers have always existed inboth rural and urban areas, in recent times,their number has increased dramatically,particularly in urban areas. In the case ofChennai, for instance, there is a 600-croretanker industry supplying about seven percentof the city’s water (Srinivasan, 2005). In Delhi,a 400-crore water tanker industry exists whichmines groundwater free of cost and sells it atRs.1000-Rs.2500 per tanker. In addition, Delhi

Water Board water is also re-packaged and soldprivately (Singh, 2005). However, this privatewater supply industry has a number ofproblems. Llorente and Zerah (2003), in theirstudy of informal water operators in Delhi, pointout that no external control exists on theburgeoning water tankers and bottled watersuppliers, and that the poorest households paymore in proportion to their income for waterthan well-off households from these informalwater sellers.

In recent times, a number of changes havetaken place in the drinking water sector, ofwhich perhaps the most important one in ruralareas is the shift (at least on paper) fromsupply-side projects, based on centralizedmodes of funding and management, to projectsbased on the principles of demandresponsiveness, cost recovery, anddecentralized mode of management (GoI, 2003-04). In the case of urban drinking water, themost important change being attempted is theprivatization of water delivery services; whilethe idea of raising water prices has also beenput forward, it has been politically the mostdifficult to implement.

4.4.2.2 Irrigation

In terms of water allocation priorities, the 2002National Water Policy accords the secondpriority to irrigation (GoI, 2002). Currently, theultimate irrigation potential of the country issaid to be 139.89 million hectares (58.50 frommajor and medium irrigation projects and 81.43from minor irrigation schemes), of which theirrigation potential created up to end of 1999-2000 is 94.73 million hectares (35.35 from majorand medium, and 59.37 from minor irrigation)(GoI, 2000-01).

Irrigation policy in post-Independence Indiagenerally has taken the form of eithergovernment-managed dams and canals orsubsidized credit for private means to exploitgroundwater sources such as tubewells. Interms of absolute scale, large-scale surfaceirrigation projects account for the bulk ofirrigation, but its relative importance hasdeclined in recent times as a consequence of

39 The central government does have a category of ‘slippage’ to deal with habitations that go from fully covered to partiallycovered, and partially covered to not covered, due to problems of source functionality, water quality, and the emergence ofnew habitations. While the Working Group on the Tenth Five-Year Plan said that slippage affected around 15 percent ofhabitations in rural India, the lack of details about slippage means that it is difficult to ascertain whether ‘slippage’ is a serious ora relatively minor problem (WaterAid, 2005).


the even more rapid expansion of groundwaterdevelopment. The share of minor surfaceirrigation (such as tanks) has been relativelystagnant or declining (Vaidyanathan, 1999). OfIndia’s total net irrigated area of 54,563thousand hectares in 1997-98, only 31.3percent was irrigated by canals (bothgovernment and private) and 5.7 percent bytanks, while 33.8 percent was irrigated bytubewells and 22.8 percent by other wells(CMIE, 2001).

Both surface (major and medium) irrigationworks as well as groundwater irrigation in Indiasuffer from a number of drawbacks. In the caseof medium and major works, these include,among others, inequitable distribution ofirrigation facilities across different classes ofpeople and different regions, neglect ofenvironmental factors, lack of utilization ofpotential created, inefficiency in water use,and lack of participation. In the case ofgroundwater, problems include fallinggroundwater tables, which in turn results insalinization of aquifers and pollution, as well asadverse effects on the poor (Gadgil and Guha,1995; Ramamurthy, 1995; Vaidyanathan,1999).

Partly in an attempt to redress thesedrawbacks, and partly in response to thepressures of liberalization, a number of changeshave been initiated in the irrigation sector inthe last decade. For instance, in the case ofboth surface water and groundwater irrigation,the government has been emphasizing, at leaston paper, the need for decentralized, people-oriented, and demand-driven watermanagement as opposed to a centralized,government-oriented, and supply-drivenregime (Upadhyay, 2002). One example of thisis the introduction of Participatory IrrigationManagement, where the management ofirrigation systems is handed over to WaterUsers’ Associations (or WUAs). In the contextof groundwater, attempts have also beenmade to introduce some form of regulationand set up water markets. Similarly, as in thedrinking water arena, privatization has beenintroduced in irrigation too; for instance, thecorporate private sector is allowed to buildand operate dams across rivers for hydro-electric power or irrigation. These changeswill be discussed in greater detail in thediscussion of different dimensions of the rightto water.

4.5 CONSTITUTIONAL STATUS OFRIGHT TO WATER IN INDIA

With this brief discussion of the rights situationand water situation in India, I now turn to adiscussion of the constitutional status of theright to water in India. As in the case of theinternational right to water, the right to wateris not explicitly mentioned in the Indianconstitution, but has implicitly been derivedunder the right to life by various judicialjudgments.

A clear recognition of the right of people toclean water was first put forward by theKerala High Court in 1990, as part of the rightto life (Article 21). This was in the contextof a case where it was questioned whether ascheme for pumping up groundwater to supplypotable water to Lakshadweep Islands in theArabian sea would not bring more long-termharm than short-term benefits, because ofwater intrusion into the aquifers (Pant, 2003).In the next year (1991), the Supreme Courtenlarged the scope of the right to life toinclude the right to enjoyment of pollution-free water and air. This decision has now beenre-enforced in a number of cases (most ofwhich were filed in the form of Public InterestLitigations). For instance, in December 2000,in the context of a case involving theGovernment of Andhra Pradesh givingpermission to an oil company to set up apotentially polluting industry in the catchmentarea of two rivers, which are the main sourcesof drinking water to Hyderabad andSecunderabad, the Supreme Court ruled thataccess to clean water is a fundamental humanright of all citizens under Article 21 of theconstitution, and that the state is duty boundto provide it (Ramachandraiah, 2001).

However, while there is no doubt that thereis judicial support for the right to water, theimplications of judicial judgments for differentdimensions of the right to water are not clear.For instance, the precise nature of the rightgranted by the judiciary (whether it isnegative or positive) and consequently therole of the state is debatable. Much of thepublic interest litigation concerning waterissues has centered on the question of thestate not destroying natural water resources,and not of the state providing water to peoplei.e., the right to water is interpreted more as


a negative right. However, the water supplyacts of various states are enacted with thesupposition that it is their duty to ensureavailability of water to people i.e., a positiveright (Singh, 1992). Further, some judicialjudgments (such as the 1980 Municipal CouncilRatlam v Vardhichand and others) hold thatthe state cannot claim insufficient funds asa reason to not carry out its duties(Upadhyay and Upadhyay, 2002). But even ifone accepts the basic point about the state’sresponsibility to ensure provision of adequatewater, what exactly such responsibility entailsis not clear. Does it imply, for instance, thatnone of the specific tasks involved in providingwater to people can be delegated to anyprivate body (which is the stand taken bysome campaigns against water privatization),or only that such private bodies should besubject to regulation by the state with a viewto ensuring access to water to all? Whichkinds of water needs are considered to bethe state’s responsibility is also not clear.While the discussion of the right to waterand of the responsibility of the state is oftenframed in terms of drinking water and waterfor domestic use, in recent times, there hasalso been some focus on the state’s dutywith respect to water for irrigation. Alandmark judgment in this context was acourt ruling in Karnataka in January 2006which made state dam authorities liable topay compensation for deficiency of serviceto farmers (Anonymous, 2006d).

Apart from the question of interpretation ofjudgments, there is also the question of howthe judicial stand is reflected in national-levelpolicies. Even the idea of water as a right(which has a constitutional basis) is notreflected in current policies. For instance, the2002 National Water Policy continues to callwater a ‘basic human need’ as against a ‘basichuman right’, in spite of many attempts bycivil society agents (at the time that the draftwas being circulated in the public domain) tochange the nomenclature from need to right(Anonymous, 2002a). In a sense, this (theNWP’s stand) reflects tensions at theinternational level (discussed in Section 4.3)about whether water should be called a needor a right. This in turn calls into question therole of the judiciary and of case law, a pointthat was also raised in the context of human

rights in general in India. In the context ofthe river-linking project, for instance, Iyer(2003) points out how the Supreme Court hasoverstepped its domain by decreeing, inresponse to a PIL, that the rivers of Indiashould be linked within ten years. While theCourt can hold that the right to drinking wateris a part of the right to life, and also directthe state to ensure the right, the particularmanner in which it is to be ensured is notwithin the domain of the judiciary. Further,even if the giving of such a direction is justified,it is premature in the sense that the proposalhas not even been adequately examined. Thereis also the important question of whether thecitizen has the right to move the court with awrit petition against an executive action whichhas been taken in pursuance of a judicialdirection.

4.6 CONTOURS OF A RIGHT TOWATER

Although there are judicial judgments derivinga constitutional basis for a right to water inIndia, there is no legislation in place promisingthis right. However, existing policies, laws, andprograms do deal with different dimensions ofa right to water and in turn, influence howstates articulate these different dimensions.There are two broad ways in which the centreinfluences state policy. Firstly, the centre playsan indicative role; that is, it indicates thedirection in which states must move (e.g.,putting in place groundwater legislation), butmay not necessarily apply ‘pressure’ for thepolicy to be actually taken up or even discussthe direction in any great detail. The secondway in which the centre influences statepolicies with regard to water is via legislationthat is binding (e.g., laws related to theenvironment).

A number of points need to be noted here.Firstly, there are varying degrees ofimplementation across the states, and thespecific way in which the same set of central-level factors would shape the right to waterdiffers from state to state. Thus the centralmodel groundwater bill has been languishing fora long time in the states, but ParticipatoryIrrigation Management has been taken up bymany states following encouragement from thecentre, although in varying forms. Similarly,following the adoption of a National Water


Policy40

at the central level (first in 1987, andthen a revised version in 2002), each statewas supposed to draft its own policy in twoyears. But some of the states who have adoptedstate water policies have ended up usingidentical ones; while this ensures someuniformity between states, it has also meantthat the uniqueness and the distinct agro-ecological zones of their own states have notbeen taken into consideration, thereby undoingan important rationale for undertaking such apolicy in the first place.

Secondly, the centre could also bypass thestates and directly influence how the rightworks out on the ground (by the use ofprograms such as Swajaldhara). Thirdly, policiesat all levels are shaped by a variety of factors.At the central level, these include internationalbodies (lending institutions, the World TradeOrganization, MNCs) and interest groups withinthe country. For instance, donor agencies arepressing for cost recovery in water, while socio-political obligations are instrumental in slowingdown the process of pricing. The same pointapplies at the state level too. In fact, fundinginstitutions, which in the pre-liberalization eraused to work primarily via the centre, now oftenfund state programs, thereby influencing statepolicies directly. A study of laws and policiesas well as the factors influencing them alsohelps to understand how the international levelwater discourses shape national and sub-national level discourses.

It is beyond the scope of this study to traceout the specific ways in which different stateshave reacted to various aspects of policy andlegislation at the centre which are relevant toa right to water; all I do here is briefly reviewthe central-level aspects themselves and thenindicate the direction that they have taken inthe states (at least in some of the cases).

4.6.1 Ownership of water

The question of ownership of water – both ofabsolute ownership and of decision-makingregarding the nature and distribution of rights– is usually the subject of state legislation(though in none of the states are there explicit

statements or acts that clearly recognize anddefine property rights in either surface wateror groundwater). But a number of aspects ofcentral-level policy and legislations are relevantto the issue.

Perhaps the most important aspect ofownership is the doctrine of public trustexplicitly adopted by a 1997 Supreme Courtjudgment; the judgment argued that our legalsystem – based on English common law –includes the public trust doctrine as part of itsjurisprudence, which in turn implies that thestate is a trustee of all natural resources, andhas a legal duty to protect them (Iyer, 2005b).The distinction between the state as absoluteowner and the state as public trustee is animportant one, because as Upadhyay (2005)points out, if the state is an absolute owner,one would have to concede that it is free toregulate the resource in any manner it chooses,and one cannot question the current regime ofrights. However, the spirit of the public trustdoctrine is not evident is any of the statelegislations.

Consider first the case of surface water. Threekinds of rights are broadly recognized in thecase of surface water by most states. Publicownership of surface water is implied ingovernment appropriation and regulation ofsurface water through irrigation projects(although there is some controversy aboutwhether the state has ownership rights, or justcontrol and user rights) (Upadhyay, 2002). Thisstarted with the Easement Act of 1882, whenthe colonial state was vested with absoluterights over all rivers and lakes, and furtherconsolidated in both colonial as well as post-colonial legislation in individual states (such asthe Madhya Pradesh Irrigation Act of 1931).Where surface water is not appropriated/usedby the state, riparian rights prevail; that is,farmers owning land contiguous to the sourceof water - stream, pond, or lake - have thefirst right to water, as long as their use doesnot interfere either with the flow of the wateritself or with the use of downstream riparians(Singh, 1992). In addition, particular groupsmay have customary rights over water.

40 The National Water Policy does not have statutory status, but is formulated and approved by the National Water ResourcesCouncil, an institution established by a resolution of the Government of India, and comprising of the prime minister as chairman,the union minister of water resources as vice-chairman and all state chief ministers and several central ministers as members.The National Water Policy is supposed to guide the formulation of policies on water at the state level.


But there has been no attempt to incorporatethe public trust doctrine either in the mannerin which each of these rights regimes work out,or in the relation between different rightsregimes. For instance Irrigation Acts in Indiaplace rights to watercourses in the hands ofthe state, often superceding pre-existing rightsof communities to mange their water resources.This in turn means that the state can divertwater resources, obstruct traditional watersources and collection methods, or act asbarriers to new local efforts in watermanagement (Pant, 2003). For example, whenwater harvesting efforts in Rajasthan resultedin water reappearing in rivers and streams thathad been dry for years, the state ended upclaiming the right of control over those watersfor the purposes of allocation of licensingfisheries (Iyer, 2001).

The absence of a public trust doctrine is evenmore evident in the case of groundwaterlegislation. Groundwater has never beendeclared to be publicly owned, nor is publicownership implied through the operation ofstate/public tubewells acts. The actual use ofgroundwater, however, is governed by a defacto rights system determined by factors suchas ownership of the overlying land, economicpower, historical precedence, and so on. Ineffect, then, groundwater is an open-accessresource, at least until it is captured andprivatized by whoever taps it first (Saleth,1996). This feature of groundwater, combinedwith the fact that there are no restrictions onits use (as we will see in a subsequent section),has been an important factor contributing toits over-exploitation.

Another important aspect of ownership that ispresent at the centre, and finds replication inthe states, is the lack of definition of a clearrelation between different rights regimes suchas formal rights and customary rights. In fact,a Supreme Court verdict emphasized the pointthat customs are only a source of law (andnot laws themselves) and that even theirbecoming a source is contingent on them beingrecorded in statutes or recognized by courts.Hence customary rights also need to be

recorded as state-sanctioned formal rights tobe relevant (Upadhyay, 2003). However, thereis no mention of the relation between formallaw and customary law in the 2002 NationalWater Policy.

The third way in which access to water isinfluenced is by the policy with regard tocitizenship, which is determined by the centre.Like in many other parts of the world, citizenshipis usually a criterion for the enjoyment of humanrights in India too. As discussed in Chapter 3,migrants are the most important group of peoplewho are excluded from the enjoyment of rightsas a result of this focus on citizenship. Thestriking down of the Illegal Migrants(determination by tribunals) Act of 1983 bythe Supreme Court in 2005 has meant that theonus of proving citizenship is once again onthe person suspected to be a foreigner, thusmaking it easier for government authorities tocategorize those without adequatedocumentation as ‘migrants’.

41 Further, slum-

dwellers are also increasingly being denied therights of citizens, as a result of judicialjudgments such as the one in the 2000 AlmitraPatel versus Union of India case, which treatthe urban poor as encroachers and equate theprovision of resettlement as tantamount torewarding pickpockets (Ramanathan, 2006).

4.6.2 Scope of right to water

Two important aspects of the scope of theright to water are affected by the centre viz.,quality and quantity. Firstly, at least some formsof water come under the purview of centrallegislation dealing with the quality of water andwater pollution (Pant, 2003). For instance,packaged water was included in 2000 in thePrevention of Food Adulteration Act (1954).Similarly, the Water (Prevention and Control ofPollution) Act, 1974 (amended in 1988) providesfor a comprehensive scheme of administrativeregulation through a permit system. Theprovisions of the Environmental (Protection)Act, 1986, also relate to water quality andaccess to water through its notifications onpermissible quality standards, environmentalimpact assessments, and public hearings. Itsmost relevant provision (from the point of view

41 Prior to 1983, the detection and eviction of foreigners was done under the Foreigners Act 1940, where the burden of provingcitizenship was on the person alleged to be a foreigner. The IMDT Act provided for judicial tribunals to determine disputes aboutcitizenship which might arise under the Foreigners Act. Though the Act was for the entire country, it was initially made appli-cable only to Assam and was to be eventually notified to other parts of the country (Bhushan, 2005).


of water) is probably the Coastal RegulationZone (CRZ) Notification, which prohibits certainactivities such as the discharge of untreatedwastes and effluents in coastal areas declaredas CRZ. However, the quality norms are farfrom adequate. For instance, the bottled waterand soft drink industry which depends onextracting groundwater, and has a huge impacton the surrounding groundwater (in terms ofboth quality and quantity), is outside thepurview of the 1994 Environmental ImpactAssessment (Anonymous, 2005b).

Secondly, the drinking water programs of thecentral government have standardized quantitynorms (for meeting basic water needs) whichinfluence the way in which these programs workon the field. According to official guidelinesissued by the central government, rural waterrequirements in India are set at 40 liters percapita per day (lpcd)

42 and urban water

requirements at 140 lpcd for sewered areas,and 100 lpcd for unsewered areas. There are anumber of problems with the quantity norms.The rural water requirement does not take intoaccount the needs of livestock (except indesert areas where another 10-15 liters isallocated on that count). Further, the normsdo not consider intra-household dynamics overwater allocation (Ahmed, 2005c). There is alsolittle space for flexibility in the norms to dealwith differences in requirements (say, acrossdifferent agro-climatic zones). Usually, indesigning rural water systems, total demand isdetermined by fixing the norm of 40 liters percapita per day as a minimum requirement forall rural areas, and then multiplying this by thepopulation. One result of this lack of flexibilityin quantity norms is that in regions where percapita use is lower, population coverage isreduced (Reddy, 1999).

4.6.3 Duties/Responsibilities implied by theright

The discussion in Section 4.5 indicates thatthere is at least some judicial basis for a rightto water in India. There is still, however, noclear basis for accountability, and the duties

of the government and enforceabilitymechanisms are not defined at the central level.

In terms of duties of the right-holder, the onlyaspect where the central government has triedto suggest legislation – groundwater use – hasnot succeeded. The Groundwater (Control andRegulation) Bill was mooted by the Governmentof India way back in 1970. The draft was thencirculated to all the states, with an advice toenact it into an Act, with modification ifnecessary. The bill has since been amendedthrice, in 1992, 1996, and 2005. However, veryfew of the states have enacted legislations,and even these attempts have been limited.Gujarat was the first state to introduce agroundwater act in 1976, which dealt with theregulation and licensing of tubewell constructionand control of groundwater use.

43 But apart

from the fact that this act was applicable onlyto nine out of Gujarat’s nineteen districts anddid not address any fundamental questions ofproperty rights over water, the legal status ofthis act is not clear and hence implementationhas been difficult (Dubash, 2002; Mehta,2003a). The scope of the Maharashtragroundwater legislation is restricted tounderground drinking water sources (GoM,1993); the same is the case with the MadhyaPradesh act too. In the case of Andhra Pradesh,while all new wells require registration andpermission for wells is supposed to be grantedonly after taking the prevailing groundwatersituation into consideration, there is no scopefor regulating existing wells (Soussan and Reddy,2003). Tamil Nadu has an act applicable onlyto the Madras Metropolitan area, and a bill hasbeen introduced for the rest of the state.

4.6.4 Delivery of water

With regard to delivery of water, the centrehas encouraged two kinds of policies, both ofwhich have been taken up to varying extentsby different states – sectoral decentralization(such as Participatory Irrigation Management)and privatization.

In the case of irrigation, sectoraldecentralization has taken the form of

42 The Government of India is in the process of relaxing these norms. The relaxed norms stipulate that once every habitation in thestate has a safe drinking water source providing 40 lpcd, state governments may provide (if demanded by the beneficiaries) up to55 lpcd of safe drinking water, with the conditionality that beneficiaries of the relaxed norms must be willing to share no less than20 percent of the capital, and 100 percent of operations and management costs of the higher service (WaterAid, 2005: 17).

43 More specifically, the Act introduced a system of licenses for any new wells deeper than 45 meters and proscribed uses otherthan agriculture and drinking (Bhatia, 1992).


Participatory Irrigation Management (or PIM).Although this idea has been supported by theGovernment of India since the mid-1980s (forinstance, in GoI, 1987), it is only recently thatstates have started taking measures tofacilitate it.

The precise nature and extent of powers andfunctions of WUAs varies from state to state,and is usually determined by a variety of factorsinternal to the state. For instance, in somestates, the fixing of water charges has beenkept outside the purview of the WUAs, but inother states (like Gujarat), the WUAs are freeto decide the water rates to be charged fromthe beneficiary farmers (Upadhyay, 2002). Butone feature seems to be common to all WUAsviz., the limited nature of the powers devolvedto them. This, in turn, is very much in tunewith the stand that central policies take withregard to water. For instance, while the 2002National Water Policy emphasizes a participatoryapproach to water resources management, theaim of involving water users’ associations andlocal bodies is said to be “to eventually transferthe management of such facilities to the usergroups/local bodies” (GoI, 2002: Section 12;italics mine); there is no mention of ownershipof the water facilities by local groups. Similarly,while participation at the level of the WUA mightbe encouraged, the question of participationin the process of irrigation policy-making athigher levels is not even mentioned.

In the case of drinking water too, the processof sector reform (particularly in the rural sector)was started by the centre. Initially, reformswere introduced in 1999 in 67 pilot districtscovering 26 states, and were scaled up in 2002in the form of Swajaldhara. The Swajaldharaprogram aims to provide direct access to centralresources to communities and communityinstitutions (panchayats and district water andsanitation committees), which want to developand manage local water resources to meet theirdrinking water needs. However, while the sectorreform scheme of Swajaldhara is expected toreplace the existing scheme of the AcceleratedRural Water Supply Program (ARWSP)

44 by 2007,

adoption of Swajaldhara has been slow andthe role of different agents such as governmenttechnical support agencies and NGOs remainsweakly defined (WaterAid, 2005).

The emphasis on this scheme is in line withglobal trends discussed earlier – focus on costrecovery, limited role for the state, emphasison water as an economic good, and so on. Infact, while the centre does concede that wateris an economic and social good, it also holdsthat some of the problems in the drinking sector(such as lack of sustainability) are due to theperception of people that “water is a socialright to be provided by the government, freeof cost” (GoI, 2003-04: 136). As the discussionin Chapter 3 points out, the idea of water as aright need not necessarily imply free water inall cases, and conversely, the agenda of cost-recovery could be undertaken in conjunctionwith the idea of water as a right. Hence notexplicitly engaging with the idea of a right towater, even though it has a constitutional basis,means that the particular manner in which thecentre ends up shaping reforms in the deliveryof water services is limited from the point ofview of equity.

Another kind of change in delivery of waterthat has been encouraged by central policiesis privatization, in the context of canalirrigation, minor surface irrigation, and drinkingwater systems (particularly in urban areas).For instance, the 2002 National Water Policypoints out that corporate sector participationin canal irrigation will help in “introducinginnovative ideas, generating financial resourcesand improving service efficiency andaccountability to users” (GoI, 2002: 6). Further,it could include one or all of various aspectssuch as building, owning, operating, leasing,and transferring of water resource facilities.

In the arena of drinking water, the ChennaiMetropolitan Water Supply and SanitationBoard, popularly known as Metrowater, was anearly reformer in India, and negotiated its firstbig loan from the World Bank in the early 1980si.e., even before the central-level policychanges. But since the late 1990s, reform ofthe water sector has become an important partof the policy discourse in several cities suchas Bangalore and Delhi. At the present juncture,however, there is little analysis of the preciseforms that privatization is taking and itsimplications, although concerns about equity(particularly as a result of the increase in pricesthat privatization is likely to result in) has led

44 ARWSP is a supply-driven scheme introduced in 1972-73.


to protests by civil society groups in many partsof the country.

Central-level policies with respect to bothsectoral decentralization and privatization havetwo important lacunae. The first is that theimplications of the 73rd and the 74thconstitutional amendments for these policieshave not been dealt with, resulting in an uncleardivision of labor. Thus the 2002 NWP calls forparticipation by both WUAs and grampanchayats, but does not deal with the problemof co-ordination between them. Even whenthere is clarity about which body has primacy(like Panchayati Raj Insitutions or PRIs in thecase of rural drinking water schemes), theremay not be supporting legislation from thestates. For instance, decentralization is oftenonly administrative, without sufficient powersand financial autonomy being given to the PRIs(NIRD, 2001). Further, the PRI Acts of differentstates which give power to local communitiesover many aspects of water do not supersedeirrigation acts wherein control is morecentralized.

A related point is that there is a conflation incentral-level policy of the private sector with‘community’ and ‘civil society’, all of which areshown in opposition to ‘the state’, whichimplicitly assumes that all non-state actors havea level playing field (Coelho, 2005). There isalso no clear discussion of the role of NGOs orcivil society. Similarly, while governmentdocuments constantly refer to the ‘community’in the context of water management, thiscommunity is taken as equivalent to the villagein drinking water programs, users of a particularwater source in the case of surface irrigation(as in lift irrigation schemes or command areasof irrigation projects), and the watershed orthe river basin in other contexts such as theintegrated planning, development, andmanagement of water resources. There hasbeen no attempt made to link these differentkinds of ‘communities’.

A second important lacuna in central-levelpolicies is the near total absence of anydiscussion of the impact of GATS negotiationson water delivery. This is crucial because theDecember 2005 Hong Kong negotiations givesome indication that India may (have to)accept commitments to liberalize servicesunder Mode 3 (relating to right to establish-

ment) in return for the ability to supply servicesunder Mode 1 (i.e., cross-border movement),which includes service outsourcing in whichIndia has proved its competitiveness (Dubey,2006).

4.6.5 Pricing

Since the Eighth Five Year Plan (1992-97),there has been emphasis on management ofwater as a commodity. The NWP 2002 alsopoints out that water charges for various usesshould be fixed in such a way that they coverat least the operation and maintenance chargesof providing the service initially and apart of the capital costs subsequently (GoI,2002: Clause 11). This has already beenoperationalized in central-level schemes suchas Swajaldhara where villagers are requiredto contribute ten percent of capital costsof a water scheme; after completion, theentire operations and management cost isthe responsibility of the community (GoI,2003-04).

However, states have been slow to take upthe central injunction to price water like aneconomic good. The arena in which this hasbeen undertaken the most is canal irrigation(where increased water charges form a part ofPIM). Raising the price of urban drinking waterhas been proposed, but undertaken in very fewareas. Rural drinking water schemes whichemphasize cost recovery have also been slowto spread.

An important lacuna in the central level policiesis the absence of any analysis of the equityimpact of pricing, and of possible mechanismsto deal with these. This, in turn, could adverselyaffect the working of a right to water. Forinstance, under Swajaldhara, only those villagesthat are willing to adopt the demand-responsiveapproach are entitled to public funding for newwater systems. This could result in poorervillages and sections of the population thatcannot pay their share of costs not receivinggovernment funds.

Interestingly, at least in the context of irrigationwater, the 1987 NWP specifically mentions thatwater rates for surface water and groundwatershould be rationalized with due regard to theinterests of small and marginal farmers. Thispoint is missing in the 2002 NWP, which justmakes a general statement that subsidy on


water rates to the disadvantaged and poorersections of the society should be well targetedand transparent. Without knowing the exactrationale of the process behind the change inwording, one may not be able to read muchinto it, but it is, nevertheless, worth noting.

4.6.6 Relation of Right to Water to OtherRights and Vision of Development

The discussion in Chapter 3 (in particular, Section3.8) indicated the importance of recognizing thepossible conflicts and complementarities betweendifferent uses and users of water, as well asbetween different kinds of rights, and of engagingwith a vision of development. The first elementis almost absent in central-level water policies,and the second is present only in a very limitedsense; these lacunae are also found in the state-level policies.

Let me start with the first point, aboutconflicts between different uses and users,and therefore potentially between differentkinds of rights. The basic principles governingthe basis, nature and content of legal rightsof different claimants over water (betweendifferent riparians in a particular river basinor between different uses and users) are notclearly codified. Similarly, water allocationpriorities are either undefined or not clear.For instance, the National Water Policyaccords top priority to drinking water (GoI,2002: Clause 5) and holds that drinking waterneeds of human beings and animals shouldbe the first charge on any available water(GoI, 2002: Clause 8). However, there is nodiscussion of how this is to be operationalized,either at the central level, or at the statelevel. That is, there is no clear discussion ofconflicts between drinking water and otheruses of water and how these are to beresolved, or of the relation between right towater and other rights. The result is thatcases where water for industry or agriculturegets priority over water for drinking are notuncommon.

One example of this is the Tamil Nadugovernment’s bid to accommodate industry (byway of lax environmental regulation and byensuring that industries have secure accessto treated water), which has resulted in textileunits flourishing in Tirupur, even thoughunregulated mining of groundwater by theseunits has led to a drastic fall in water levels

and a shortage of drinking water in the region(Jayaraman, 2005).

Perhaps nothing exemplifies the complexitiesinvolved in ensuring a right to water more thanthe relation between right to water and rightto livelihood. Srinivasan (2005) gives theexample of private tankers in Chennai whichare mining the borewells in the surroundingfarmlands for water. The water that is soldcommercially is pumped out using subsidizedpower that is provided by the Tamil Nadugovernment for agricultural purposes, whichmeans reduced water for agriculture as wellas for drinking water supplies. While some ofthe farmers protest against this, for others,selling water to these private operators is oftena more viable option than living off agriculture.Srinivasan points out a number of interestingquestions that this example raises. Firstly, whilecases involving MNCs like Coke and Pepsi havereceived a lot of attention because theirbottling plants over-extract groundwater,relatively less attention has been focused onIndian private operators. Secondly, there arepotentially alternative ways of fulfillingChennai’s water needs (such as rechargingponds and protecting swamps). Thirdly, whilethe need to fulfill the water rights of Chennaicannot be taken away, these cannot befulfilled at the expense of the right to waterand the right to livelihood of rural people.Fourthly, the fact that there are willing sellersof water (even though it might not be a viablestrategy in the long term because extractinggroundwater would become impossible or toocostly at some point) means that seriousthought needs to be given to the nature ofagriculture and rural development.

This last point about the nature of thedevelopment process is perhaps the one withwhich water policies and legislation need toengage with most critically. Note that there isa particular view of development alreadyunderlying most water policy; the problem isthat it often follows a conventional view ofdevelopment without any questioning. Consider,for instance, irrigation policy in post-independence India. One of its major goals hasbeen maximizing production per unit of area(GoI, 1972). The importance of this goal hasto be understood in the context of the broadereconomic goal of industrialization, where


agriculture was seen mainly as a source ofcheap labor and food. State-funded, large-scale canal irrigation was seen as the bestmeans for bringing more and more areas of thecountry under cultivation, thereby increasingagricultural production. This, in turn is one ofthe factors that resulted in excessiveconcentration on large dams in India(Ramamurthy, 1995).

Similarly, the broad agricultural policy of thestate – in particular, the pricing of agriculturalproduce (minimum support prices andprocurement prices) as well as pricing of andaccess to agricultural inputs – affects howwater (both surface water and groundwater)is exploited and used.

Note that sometimes even attempts to moveaway from conventional development withoutthinking through the alternative carefully couldhave negative consequences. Baviskar (2006)gives the example of the Master Plan for Delhi2021, which envisages an economic growthmodel that discourages polluting manufacturingindustries and encourages ‘clean’ service sectorindustries like international tourism, withouttaking into account the resource requirementsof these forms of development (in terms ofwater and power, for instance).

4.6.7 Participation

The discussion of participation in Chapter 3already indicates that the usual manner inwhich it is conceptualized and implementedis problematic, both in terms of involvementof different sections of society in decision-making at supra-local levels, and its workingat the local level. The central policies onwater replicate these problems, and there isusually no more than a cursory mention ofparticipation.

For instance, the 2002 NWP mentions that theinvolvement and participation of beneficiariesand other stakeholders should be encouragedright from the project planning stage itself,but the nature of this participation, as well ashow and by whom beneficiaries andstakeholders are to be defined is unclear.Similarly, while PIM encourages participationat the level of WUAs, any participation in theprocess of irrigation policy-making at higherlevels is not encouraged. Even in drinking waterschemes such as Swajaldhara, whichpurportedly rest on principles of social inclusion

and governance, there are no mechanisms toactually ensure that the schemes are designedby including all sections of society (Ahmed,2005c). In part, this could stem from eulogisticnotions of ‘community’ (particularly of villagecommunities) so that power politics within thecommunity are not taken into account. Itcould also be due to the fact that the goal ofparticipation in these projects is itself verylimited viz., to get local people to contribute(labor, for instance).

In spite of the positive role that judicial activismhas often played in recent times, it has alsoserved to limit participation in some cases. Iyer(2003) points out how in the context of theInter-State Water Disputes Act of 1956, ‘inter-state’ really means intergovernmental, and thatwhen two governments agree on a project onan inter-state river or a tribunal lays down thedetails of such a project in its award, the rightof the affected people to be consulted aboutor to question the project get extinguished.One instance of this is the Supreme Courtjudgment affirming the rights of the governmentin the case of the Narmada (Sardar Sarovar)case.

4.6.8 Non-water legislation

The right to water is not only affected by lawsrelating to water (whether ownership and useor quality and pollution), but also by other centrallegislation; these do not deal with water perse, but rather with the ability of states topursue particular kinds of water policies, andthat of communities to access clean water andinfluence water policy (Pant, 2003). While it isnot possible to analyze all of these here, it isuseful to keep them in mind. The list of suchlegislations includes (i) the 73rd and 74thamendments to the Constitution under whichdrinking water, water management, watersheddevelopment, and sanitation are to be devolvedto the panchayats and nagarpalikas (ii) theRight to Information Act and (iii) the LandAcquisition Act 1894.

Recent policy changes, for instance in urbaninfrastructure, could also potentially impact theway in which various dimensions of right towater work in the case of specific states. Oneexample of this is the Jawaharlal Nehru NationalUrban Renewal Mission (under the Union Ministryof Urban Development), under which a total of63 cities and towns across the country have


been identified for fast-track development(Anonymous, 2006b).

45

4.7 CONCLUSION

This chapter shows that there is support for aright to water in the international human rightsregime, although the most important statementto date – the General Comment 15 of the UnitedNations, leaves a lot of issues undefined. Atthe India level, a basis for a right to water hasbeen found in the Indian constitution; however,neither the judiciary, nor the government hasengaged with the General Comment in particular,or the human rights discourse in general (atleast in the context of a right to water), which,in turn, is an indication of the hegemony ofother water discourses.

The specific discussion of different dimensionsof water shows, on the whole, that from thepoint of view of a meaningful right to water,there are several lacunae in central-levelpolicies and legislation, particularly in the formthat current changes in the irrigation anddrinking water sector have taken. This resultsin limitations in the working of the right towater at the state level. Further, the divisionof labor between the centre and the statemeans that some of the recommendations madeby the centre are non-statutory in nature,and not necessarily followed by the stategovernments.

In the next chapter, I will turn to the articulationof the right to water in the legislation of oneparticular state viz., Maharashtra.

45 It is too early to say what precise impact this mission would have on water. But two examples indicate the kind of impacts thatare possible. Firstly, the development plans prepared by at least some of the cities and towns already indicate an importancegiven to flyovers and gardens instead of to basic services like water supply and drainage. Secondly, refusal to comply withurban reform policies of the centre could result in reduced central funding for basic services such as water. The states ofMaharashtra and West Bengal, which refused to repeal laws restricting land ownership (originally a mandatory ‘reform’condition, and now made optional) are likely to get reduced central assistance under JNNURM towards water and sanitationprojects meant for the urban poor (Anonymous, 2006b; Dave, 2006).


CHAPTER 5

RIGHT TO WATER IN MAHARASHTRA

5.1 INTRODUCTION

Having traced how the right to water works inthe domains of human rights law and legislationat the India-level, I now move on to the caseof Maharashtra. I start by giving a justificationfor the choice of this state. I then provide abackground of the general water situation inthe state. The rest of the chapter focuses onhow Maharashtra-level legislation affectsdifferent dimensions of a right to water.

5.2 WHY MAHARASHTRA?

Maharashtra offers an interesting case studyof the question of right to water for a numberof reasons.

As in the rest of India, water-basedinterventions have always been important inMaharashtra, mainly due to the predominanceof agriculture in the state, in which water is acritical input. Combined with the growinghousehold needs of rural and urban populations,as well as the water needs of industry, theresult is a high demand for water. Theimportance of water in the state is evidentfrom the number of statutory bodies appointedto study issues of water. For instance, twoIrrigation Commissions have been appointed -the first in 1962 (under the chairmanship of SGBarve) and the second in 1995 (under thechairmanship of MP Chithale). Apart from these,the state has also had a Fact-FindingCommittee for Survey of Scarcity Areas inMaharashtra State in 1973, a Review Committeeon Drought-Prone Areas in 1984, a Fact-FindingCommittee on Regional Imbalance inMaharashtra State to study the problem ofregional inequity in the state (including inequityin regional distribution of water), and theSukhathankar Committee in 2000 to evaluatedifferent rural-urban water supply schemes.

However, the access of many groups of people

to water continues to be limited, as will beevident in the discussion in the next section.Various factors are responsible for this:geographical characteristics, faulty water (andwater-related) policies of the colonial and post-colonial state, and unequal distribution of power.For instance, the choice of a wrong croppingpattern viz., extensive cultivation of a water-intensive crop in a semi-arid region, has led toan artificial creation of ‘scarcity’ of water. Thediverse range of factors affecting the watersituation in the state will help to bring out thecomplexities involved in ensuring the right towater to all as well as the importance ofcontext-specific discussions of the right.

Maharashtra is also a good example of thedifferent kinds of changes that are occurringin the water sector, not just in India, but theworld over. These include a greater emphasison Water Users’ Associations (WUAs) formanagement of water resources at variouslevels, revision of water rates, corporateinvolvement in medium and major irrigationprojects, demand-driven rural drinking waterprojects, and a focus on watershed projectsas well as on river basin management in waterpolicy. One realm in which change is evident islegislation; since 1990, a number of legislations– the Groundwater (Restrictions for DrinkingWater Purpose) Act in 1993, the MaharashtraState Water Policy in 2002 (MSWP),

46 the

Maharashtra Management of Irrigation Systemsby Farmers Act (MMISFA), and the MaharashtraWater Resources Regulatory Authority Act in2005 (MWRRA) – have been passed.

Lastly, Maharashtra has a rich history of socialmovements of various kinds (see, for instance,Shah, 1990; Rodrigues, 1998), including a widerange of civil society interventions with respectto natural resources and economic developmentin general, and water in particular. For instance,a number of experiments in equitable distribution

46 The MSWP is not strictly a legislation, but a policy that is supposed to influence legislation.


of water and its sustainable use have beenundertaken in Western and SouthernMaharashtra. This factor is important in thechoice of Maharashtra because this study isalso interested in the question of how civilsociety initiatives engage with the idea of rightto water, a question that will be taken up inChapter 6.

5.3 GENERAL WATER SITUATION

In this section, I will describe the general watersituation with respect to drinking water andirrigation in Maharashtra, and then summarizethe broad reasons for the prevailing situation.

The state of Maharashtra has two kinds of riversystems – those flowing eastward and thoseflowing westward. Of the five major river basinsin the state – Krishna, Bhima, Godavari,Vainganga and Tapi – , the Krishna, Vaingangaand Godavari river basins supply the maximumamount of water to the state (Deshpande andNarayanamoorthy, 2001).

47 Estimated average

annual availability of water resources in thestate is 164 cubic kilometers of surface waterand 20.5 cubic kilometers of groundwater.

48

According to the 2001 census, 79.8 percent ofthe households in the state have access tosafe drinking water. This includes 68.4 percentof households in rural areas and 95.4 percentin urban areas. In terms of irrigation, althoughthe percentage of gross irrigated area to grosscropped area has increased steadily since thetime of formation of the state (from 6.5 percentin 1960-61 to 16.6 percent in 2000-01), it isstill low as compared to the ultimate potentialas well as to the all-India average of 38.7percent (GoM, 2000-01).

As in the rest of the country, there are problemswith respect to efficiency, equity, andsustainability in the case of both drinking waterand irrigation. The lack of efficiency is evident,for instance, in the fact that actual utilizationof the irrigation capacity created up to June

1999 was only 38 percent for major and mediumirrigation projects (GoM, 2000-01). Similarly,there is also inequity in the distribution of water,both between districts and within the samedistrict. For instance, sugarcane-growing areasget water even during droughts, while otherareas lack water for subsistence crops or evendrinking water. The result is that eight out ofthe ten leading sugarcane-growing districts –Ahmadnagar, Solapur, Sangli, Satara, Pune,Nashik, Beed, and Latur – have large drought-prone areas in them.

Sugarcane cultivation is problematic not onlyin terms of equity, but also in terms ofenvironmental sustainability. Increasedcultivation of sugarcane usually has gone hand-in-hand with lavish use of water for irrigation

49

and use of fertilizers in excessive amounts(which further increases the need for water).This has worsened waterlogging and salinityalong the Deccan canals, and in some caseshas led to complete loss of formerly fertile land(Attwood, 1992; Attwood, 2001). Sustainabilityis also a problem in case of groundwater use.While there are currently no over-exploitedwatersheds in Maharashtra (i.e., watershedswhere groundwater exploitation is over 100percent of recharge capacity),

50 there are 34

dark watersheds (i.e., where groundwaterexploitation is between 85 percent and 100percent). These represent 2.26 percent of totalwatersheds in Maharashtra (GoI, 2000-01).Further, there is evidence that the groundwatersituation is fast deteriorating. A CentralGroundwater survey to ascertain the status ofgroundwater in the state showed that fromMay 2003 to January 2004, water levels in 35percent of the wells in central Maharashtra fellby two meters, and that in the northern,southwestern and western areas of the state,the fall was as steep as four meters (Bavadam,2004).

It is important to note that the problems ofefficiency, equity, and sustainability of water

47 Bhima is a tributary of Krishna and Vainganga is a tributary of Godavari; however, in Maharashtra, the two tributaries arecounted as separate rivers.

48 Measurement of groundwater availability is based on the component of annual recharge that can be subjected to developmentby means of suitable groundwater structures.

49 Until recently, irrigation water was not charged per unit volume, and farmers had no cost incentive to economize. Canal waterwas also often used to flush salts out of the surface soil. Further, uncertainty of supply led to excessive use of canal waterwhen available (Attwood, 2001).

50 The annual recharge rates are average estimates, so that individual aquifers could have different recharge rates. Further,estimates of extraction are usually made from a very limited sample. Hence there are doubts about the accuracy of theclassification (Vaidyanathan, 1999).


are inter-related. For instance, the growingproblem of groundwater depletion means thatthe newer technology needed for pumpingwater is less and less accessible to poorfarmers, resulting in inequity in the waydifferent classes of people can cope with thegroundwater shortage.

There are a number of reasons for the problemsin the water situation in the state. One is to dowith nature’s endowment in terms of topographyand rainfall. 91 percent of the geographical areaof Maharashtra is occupied by hard rock andthe topography is undulating, as a result of whichgroundwater percolation and storage iscomparatively poor. This, in turn, means thatirrigation capacity of the state is limited. The2

nd Irrigation Commission of India pointed out

that even after using surface and groundwaterfully, only 30 percent of the land in Maharashtracould be brought under irrigation, and 70 percentwould be rainfed (GoI, 1972). To date, eventhis potential has not been fully reached.

The effect of the topography is aggravated bythe fact that even though the average rainfallin Maharashtra is quite high, there is widevariation in rainfall across different parts of thestate. There are three broad zones in the statein terms of natural rainfall. One is the coastalstrip of Konkan (in the western part of thestate), which receives an average of 2,500 mmrainwater every year. But a large part of thiswater drains out into the Arabian sea since therocky terrain prevents percolation of rainwaterinto the soil. The second zone is the rain-shadowregion of the Western Ghats, mostly in WesternMaharashtra and Marathwada, which getsscanty and erratic rainfall – this constitutes 40percent of the land territory of Maharashtra.The third zone, consisting of Vidarbha and someparts in the other areas, receives adequate rains,barring certain pockets. As a result, large partsof the state are semi-arid and nearly 50 percentof the state’s net area is consistently subjectto droughts.

51

More than geographical factors, however, manyof the problems in the water situation can beattributed to deficiencies in state policy withregard to water. In the case of irrigation, thisis primarily reflected in the undue focus on largesurface irrigation projects, and in the case ofdrinking water, in the piecemeal and target-oriented approach followed.

I first consider the case of irrigation. As inirrigation policy at the central level, successivestate governments in Maharashtra haveemphasized major and medium surface irrigationprojects, so that the state now has the‘distinction’ of having the largest number ofon-going major and medium irrigation projectsand extension/renovation/modernizationschemes in India (108 out of a total of 476 inthe country) (GoI, 2000-01).

The emphasis on large-scale dams and canalsstems in part from the goal of increasingagricultural production in India (discussed inChapter 5), but in the specific case ofMaharashtra, there is also a particular historicalcontext which gave rise to this. It is importantto take this into account, because it presentsa good example of how a particular constellationof factors could give rise to a policy, and howthe policy has unintended consequences evenas the factors themselves change. Theemphasis on large dams began in the secondhalf of the 19th century, following major faminesand crop failures, and was spurred in part bythe Deccan Riots of 1875.

52 The first irrigation

dam and canal – the Kutha – was constructedin 1874. The early canals were initially conceivedas protective works, i.e., they were intendedto provide water for food crop production overwide areas. But faced with low demand forirrigation water and high costs of canal irrigationin the Deccan, the government switched to asystem of using water to service compact areasfor water–intensive crops such as sugarcane.In this system, the government guaranteed tosupply water to a certain area (designated a

51 In the post-independence period, Maharashtra experienced severe droughts in 1965-66, 1970-73, 1984-87, 1992, and 2001-03(Krishnaraj et al., 2004).

52 In 1875, riots took place in Western Maharashtra, with peasants seizing and burning mortgage deeds and other records thatmoneylenders had in their possession. The Deccan Riots Commission, appointed by the British government to enquire into thecauses of the riots, found evidence of increasing agricultural indebtedness and consequent land ‘transfers’ from cultivators tomoneylenders. Further, the riot villages were found to be characterized by poor soil and precarious climate, and were in theheart of the famine zone. In 1879, the government attempted to promote a greater balance in credit relations by passing theDeccan Agriculturalists’ Relief Act, which inhibited transfer of land from peasant debtors to their ‘non-agricultural’ creditors.Though it was not the riots per se that led to the taking up of large-scale surface works, they did influence the forms thatagricultural policy (and more specifically irrigation policy) took (Attwood, 1992).


block) for six years, and the cultivators, in turn,guaranteed that they would take canal waterfor the same period. Following the success ofthe block system, more canal systemsdeveloped between 1900 and 1938. By the endof the 1930s, there was a seven-fold increasein canal irrigated area since the turn of thecentury and sugarcane became the basis ofincreasing prosperity in the canal villages(Attwood, 1992). In the post-independenceperiod, canal irrigation has spread even further.

Since the 1970s, groundwater development hasalso been emphasized, and tubewells havereceived considerable institutional credit. Buton the whole, the attention directed towardsminor irrigation has not been adequate,especially when one considers the fact thatminor irrigation accounts for a large portion ofthe state’s ultimate irrigation potential and muchof this still has not been attained (Deshpandeand Narayanamoorthy, 2001). For instance, liftirrigation schemes, which are critical in a statewith undulating terrain, have been recommendedby various committees, but except in the caseof sugar co-operatives, they have not been verysuccessful. At present, lift irrigation schemesconstitute a very small percentage (0.36percent) of the total irrigation capacity createdup to June 1999. The actual utilization of theminor irrigation capacity created up to June 1999was only 29.7 percent (GoM, 2000-01).

The bias of state policy in favor of major andmedium surface works was exacerbated in thelate 1990s when the government ofMaharashtra started trying to impound as muchas possible of the water awarded to it by theBacchawat interstate water dispute tribunal.

53

This resulted in a rapid process of damconstruction with considerable social costs (inthat rehabilitation concerns in these dams werenot met at all). Ironically, much of the waterimpounded in the dams remains unutilized todate because of incomplete canal work(Deshpande and Narayanamoorthy, 2001;Phadke, 2004).

In the case of drinking water in rural areas, asin the rest of the country, provision of water

supply has been supply-driven, with emphasison norms and targets and on construction andcreation of assets, rather than on managementand maintenance of the facilities built or ofthe sustainability of the source itself; this inturn has led to a large gap between coverageon the books and actual coverage on theground (WSP, 2004). For instance, the mostcommon form that drinking water schemeshave taken is digging of borewells, neglectingother sources of drinking water like tanks.Further, during times of severe watershortages such as droughts, ad hoc measures(e.g., supply of water via tankers) are offeredinstead of seeking long-term solutions. Untilrecently, there has also been no systematic,comprehensive policy on recharging strategiessuch as water harvesting and watersheddevelopment, though soil and water conser-vations measures have been undertaken on asporadic basis. Even in the limited cases wheresuch practices have been adopted, emphasisis often more on irrigation for agriculture ratherthan on drinking water.

With this brief discussion of the water situationin Maharashtra, I now turn to the differentdimensions of the right to water in Maharashtra.

5.4 DIMENSIONS OF RIGHT TOWATER IN MAHARASHTRA

As the discussion in Chapters 3 and 4 shows,right to water is not a simple matter involvingjust access to water, but involves a number ofdistinct, though inter-related dimensions. In thissection, I will discuss how each of thesedimensions works out at the level of governmentpolicies and laws in Maharashtra.

As mentioned earlier, there have been a numberof changes in the realm of water policy in thestate since the 1990s, of which the mostimportant are the passage of the MSWP, theMMISFA and the MWRRA. Hence for eachaspect, I will first discuss the experience untilthe 1980s and then the changes in the lastdecade and a half.

54 But before turning to a

detailed discussion of the different dimensions,let me just briefly mention the (official) rationale

53 This tribunal was set up to resolve the dispute on the sharing of the water of the Krishna river between the states of AndhraPradesh, Karnataka and Maharashtra. The state of Maharashtra was given an award of 560 TMC of water in May 1976, whichwas to be used by May 2000 (Deshpande and Narayanamoorthy, 2001).

54 It is important to note that the rules to implement MMISFA and MWRRA have not yet been fully framed, although in the case ofMMISFA, official guidelines for the working of WUAs have been in existence since 1994.


behind each of the three recent pieces oflegislation/policy change.

The MSWP of 2002 is the first water policydocument of Maharashtra, and as such, animportant landmark. Even though state waterpolicies do not have legal status, and there areusually gaps between the policies, passage ofenabling laws, and implementation by thebureaucracy, they are still important becausethey provide overall guidelines; individuals orNGOs cannot fight for suitable changes in rulesif the policy documents do not even mentionthem. The MMISFA was passed in order toprovide a statutory basis for management ofirrigation systems by farmers, which in turn is intune with recommendations made at the centraland state levels. The Act aims to increaseefficiency in utilization of irrigation capacity, aswell as in distribution, delivery, application, anddrainage of irrigation systems (GoM, 2005a). TheMWRRA aims at establishing a Maharashtra WaterResources Regulatory Authority to regulatewater resources within the state, as well asfacilitate judicious, equitable, and sustainablemanagement of water resources (GoM, 2005b).

From the point of view of a rights discourse,perhaps the most important feature of the statepolicy and the two legislations is the introductionof the concept of ‘entitlements’ to water. Forinstance, the MSWP mentions entitlements towater for the first time, and grants water users’organizations and entities stable andpredictable entitlements to water, so that theycan decide on the best use of water withoutbureaucratic interference (GoM, 2002: Section1.3). Further, it claims that a well-defined,transparent system for water entitlements willbe established, so that these cannot bechanged unilaterally by any state agency orauthority (GoM, 2002: Section 4.1). BothMWRRB and MMISFA, legislations that were putin place three years after MSWP, discussentitlements in greater detail. The nature ofthese entitlements, and their implications ondifferent dimensions of a right to water, willbecome evident in the ensuing discussion.

5.4.1 Ownership of water

As at the India level, the state continues toplay a dominant role, both in its control overwater resources, as well as in defining thenature and distribution of rights over water.Since this has been done most explicitly in the

case of surface irrigation, it is this that I willfocus on. But it is also important to note thatin the case of groundwater, the de facto openaccess status of water has not beenquestioned. In fact, a distinguishing feature ofall recent legislation is the lack of any seriousconsideration of groundwater, a lacuna whichis especially problematic in the light of the factthat groundwater has become the moreimportant source in recent times as well as thefocus of a large number of water programs (suchas watershed development). Further, the ideaof water being a public trust finds no mentionin any Maharashtra-level legislation.

In the case of surface water, ownership isvested in the state. In fact, even the recentchanges calling for participatory managementof canal systems by NGOs and for theestablishment of entitlements specificallyemphasize this. For instance, the MSWP refersto water entitlements as “entitlements to usethe water resources of the state” (GoM, 2002:Section 4.1), thereby reinforcing the idea ofthe state as the owner of the resource.Similarly, the MMISFA emphasizes that unlessotherwise decided by the government, theownership and the control of reservoirs andhead works of any irrigation project, and ofmain rivers and their tributaries, shall be vestedin the government (GoM, 2005: VIII(66)).

In terms of defining the nature and distributionof rights over surface water also, the statehas always played an important role, althoughthe strong tradition of farmer-managed irrigationsystems (even prior to the official move towardssuch systems) has meant that there has beenan inter-play between the working of rights onthe ground and the conception by the state.The precise nature of these rights is discussedin the following section, on the scope of therights.

The question of ownership also includes definingwho the beneficiaries of water are. For bothdrinking water and irrigation water, thehousehold is the unit usually used for assigningwater rights (even if water requirements areconceptualized per capita); further, oneindividual (the head of the family, again usuallymale) is taken to be the representative of thefamily. The implications of this have beendiscussed in Chapter 3. In the specific case ofMaharashtra, the question of distinct waterrights for women has not been considered at


all in state legislation, although, as we will seein Chapter 6, civil society groups have engagedwith this question. Similarly, the dimension ofaccess to water being linked to citizenship orproof of residence has also not been questioned.

In the context of rights over irrigation water,the link between access to land and accessto water continues to date, so that thelandless have no rights to irrigation water. Thenew legislation has one feature which couldpotentially help to break this link. Unlike WUAsin many states where membership is restrictedto registered landowners, permanent orprotected tenants in the area of operation ofthe society are also allowed to be members ofWUAs in Maharashtra. That is, there ispotential for non-landed groups to acquirewater. But given that leasing in land on asecure or permanent basis and moreimportantly, proving this, is difficult, thisprovision generally cannot be used. Further,the policy guidelines for WUAs emphasize theimportance of homogeneity of interests withinthe WUA, and therefore of inclusion of farmersonly (GoM, 1994). Thus even though there isno explicit exclusion of the landless, theirinclusion is difficult.

Finally, in granting explicit water entitlements,the new legislation makes no distinctionbetween individuals, local associations, andcorporations. Sainath (2005a) points out thatthis puts corporations on the same footing ascitizens and farmers.

5.4.2 Scope of right to water

At the level of state legislation, there is noguaranteed promise of water for all (for drinkingor for the fulfillment of basic needs), whether interms of quality, quantity, affordability, oraccessibility. This is true even with the newlegislation which explicitly talks aboutentitlements for the first time at least in thecase of irrigation; no entitlements are grantedfor drinking water. While systems of rights overwater (both drinking and irrigation) that arebased on state legislation, customs, or localinstitutions do exist (such as the shejpali andblock systems described below), the kind ofaccess to water that particular individuals andgroups actually have is determined by a

combination of economic, social, and politicalfactors.

I now turn to a brief discussion of the systemof rights present in surface irrigation systems.In Maharashtra, the area officially designatedas the irrigable command area by the IrrigationDepartment defines who is entitled to irrigation(Rajagopal et al., 2002). The entitlement is notfixed and is not formally tied rigidly to season,nor is it binding on the irrigator to take anyone designated crop, although there is anapproved cropping pattern for each project.

The most common approach followed fordistribution of water in canal systems is shejpali,although other approaches also exist. Undershejpali, every farmer is required to apply forirrigation each season, indicating the crops tobe irrigated and the area for each crop.Depending on the water availability that year,canal authorities then issue water passes afterscrutinizing the applications. In this system,water is supplied to particular crops, ratherthan to land, with the quantity of water peracre varying among crops.

55 The duration of

irrigation commitments varies from a singleseason to six years, and priority ranking variesdirectly with duration (Naik and Kalro, 1998).

Under the block system (which is different fromshejpali), longer-term commitments (six yearsor more) are made for a variety of crops. Suchblocks are most common in the Deccan canalsin western Maharashtra, with the importanttypes currently being cane blocks, fruit blocks,garden blocks, garden and seasonal blocks, twoseasonal blocks, and three seasonal blocks(Rath and Mitra, 1989).

In the case of both shejpali and block systems,water was always supplied on an area (asagainst a volumetric) basis. This led to wastageof water because for an individual farmer, therewas no incentive to conserve water; on thecontrary, it was rational to use more water, aswell as grow water-intensive crops, eventhough the social cost of this was high. Theresult has been distorted cropping patterns andcropping practices.

Under the new system of farmer managedsystems in surface irrigation, the most importantchanges in terms of the nature of rights is that

55 Hence farmers’ crop choices are implicitly constrained by irrigation authorities.


WUAs now have the freedom to decide thecropping pattern. Bulk entitlement of water tothe WUA would then be decided by theMaharashtra Water Resources RegulatoryAuthority (Regulatory Authority henceforth), onthe basis of the cropping pattern designed andthe designated command area. However, theright to distribute water to individual farmerswould rest with the WUA. Further, the WUAswould pay for the water received on avolumetric basis, although individual farmersmay continue to pay the WUA on an areabasis.

56

Since the concept of entitlements put forth inthe MMISFA and the MWRRA is the nearestversion of right present in the state’s discourse,it is useful to consider its nature in a littlemore detail. Firstly, entitlements in thelegislation refer to authorization granted to usewater i.e., a usufructuary right. But this is notlinked to any notion of inherent rights of farmersover water (Upadhyay, 2005a); it is also farfrom any notion of entitlements to satisfycapabilities (in the Sen-Nussbaum frameworkdiscussed in Chapter 2). Secondly, the MSWPpermits transfer of all or a portion of waterentitlement between entitlement holders in anycategory of water use, and priority on bothannual and seasonal basis based upon faircompensation of the entitlement. However, itis not clear whether only the quota for aparticular season or year is transferable, orwhether a permanent transfer of theentitlement is also feasible. Further, there isno provision for transfer of entitlements to non-entitlement holders (such as the landless).

57

5.4.3 Duties/Responsibilities implied by theright

As mentioned in the previous section, there isno guarantee offered by the state for accessto either drinking or irrigation water. Even inthe case of surface irrigation, where there issome degree of ‘commitment’ by the irrigationauthority of the state, this commitment is notan enforceable guarantee i.e., there is no optionfor redress if the right is denied. However, theMemorandum of Understanding signed betweenthe Irrigation Department and the Water UsersAssociation would usually specify how much

water the WUA would be allocated, along withdetails of proportionate reduction in case ofreduced storage or reservation of part of thewater. This, in turn, created at least some basisfor negotiation. But in the new regulations,there is, on the one hand, still no provision forenforcement of the water entitlements; on theother hand, it is also not clear what spacethere will be for the kind of negotiations thatused to take place in the past.

58

With respect to the duties of the right-holder,the two major questions are whether there areany restrictions on the manner in which watercan be used or limits to water consumption,both of which are important from the point ofview of equity and sustainability. With twoexceptions, both inadequate, this is an area inwhich there is a big lacuna in state policy, eventhough on paper, the state does emphasizethe importance of water conservation (GoM,2002).

The first exception is a set of restrictionsrelevant to irrigation. Under the 1976 IrrigationAct, canal and well water could not be usedfor the same area, and there had to be adistance of three meters between channelsthat supply irrigation water through canalsystems and channels conveying water fromwells. The rationale for the restrictions onconjunctive use of surface and groundwaterwas to prevent misuse of public water (Pant,1999). Implementation of this provision wasnever very effective, and with the passage ofthe MMISFA, these restrictions are no longerin force since the act has explicit provisionfor use of groundwater within the command.The same act also includes provisions toregulate sowing, planting, or growing of crops,and to regulate areas of cash crops duringspecified periods in the command areas ofcanals in order to ensure proper utilization ofwater resources (GoM, 1997: I-47 (1) and I-48). But such direct restrictions are difficultto implement, and the above provision hasnever been used. Again, with the passage ofthe MMISFA, which explicitly guarantees toWUAs the freedom to grow different cropswithin their water entitlement, theserestrictions are not relevant.

56 The discussion in this paragraph draws on a personal communication with K. J. Joy (December 12, 2005).57 This point was raised by K. J. Joy, personal communication (December 12, 2005).58 Thanks to Suhas Paranjape (personal communication) for drawing my attention to this point.


Currently, the only provision to regulate wateruse or consumption in the case of irrigation isthe provision in the MWRRA that in some regions,water will not be made available from the canalunless the cultivator adopts drip irrigation orsprinkler irrigation. However, the introductionof this condition without taking into accountthe financial burden that such techniques couldimpose is detrimental from the point of view ofequity; further, the possibility of usingalternative water-saving technology has alsonot been considered (Sainath, 2005b).

The second exception is in the case of drinkingwater. Maharashtra has a legal measure to dealat least partly with groundwater exploitationfor drinking water, viz., the Groundwater(Restrictions for Drinking Water Purpose) Actof 1993. As protection for public drinking watersources, it is prohibited to sink wells for anypurpose within a distance of five hundredmeters

59 of a public drinking water source, if

both are in the area of the same watershed(GoM, 1993: II-3 (1)). In areas declared to be‘water scarce’, the extraction of water fromwells within one kilometer from a public drinkingsource can be regulated (GoM, 1993: II-5).Digging of new wells in over-exploitedwatersheds

60 is also prohibited (GoM, 1993:

II-7 (1)); even in cases of existing wells inover-exploited watersheds, extraction of watercan be prohibited during scarce months if it isfound to adversely affect any public drinkingwater source (GoM, 1993: II-8). Apart fromthe fact that the provisions of this act haverarely been used, the effectiveness of this actis limited by the fact that it does not providefor restrictions on groundwater exploitation inthe case of irrigation.

5.4.4 Delivery of water

In line with central guidelines, changes indelivery of water have taken two forms in

Maharashtra – sectoral decentralization andprivatization.

In the case of drinking water, sectoraldecentralization has basically been confined torural areas. Traditionally, government-ownedagencies have been responsible for constructionand management of rural water supply systems.Although this approach has led to the creationof assets on a massive scale, the assets haveoften been of poor quality and service deliverynot adequate. The Sector Reform Programpioneered by the Government of India, andstate-level projects directly funded by donorssuch as the World Bank have increasinglyencouraged demand-driven projects in lieu ofthe older supply-driven projects.

61 The key

feature of this is that management (and in somecases construction also) is undertaken via arepresentative committee called the VillageWater and Sanitation Committee, which may ormay not be formally part of the panchayatsystem. Currently, such demand-driven projectshave been introduced in a few selected districts– Amravati, Dhule, Nanded, and Raigad. Themain funders for these are the World Bank, theGovernment of Germany, and the Governmentof India (via its Swajaldhara program); theGovernment of Maharashtra also funds somedemand-driven projects, though it also continuesto fund some older, supply-driven schemes.

In the case of irrigation, sectoral reform hastaken the form of PIM in canal irrigation, and amove towards greater community participationin watershed development programs. The focusof the discussion here will be on PIM.

While associations for managing water systemshave existed for a long time in Maharashtra(such as the phad system

62 in North-west

Maharashtra), the recent genesis of theparticipatory irrigation management program orPIM can be traced to the formation of co-

59 The purpose of keeping a safe distance of 500 meters is to protect minimum one meter saturation of aquifers in the month ofMay extending from the center of source well up to 500 meters radial or elliptical distance, depending upon the occurrence ofrock type, geomorphological conditions, and location of source well with respect to drainage pattern and density of wells (GoM,1993, Technical Guidelines, Section 3).

60 In the context of the Maharashtra Groundwater Regulation Act, an over-exploited watershed means a watershed where theestimated annual groundwater extraction is more than 85 percent of the estimated average annual groundwater recharge(GoM, 1993: I (5)).

61 Note that apart from the two extremes of supply-driven and demand-driven projects put in place by the government, otheroptions for management of assets and service provision (such as service provision by formal or informal private waterproviders) are already in place in the state, which have varying degrees of success in terms of cost recovery and equity.

62 The phad system consists of a series of weirs where the canal system is managed, operated, and maintained by beneficiarygroups. The entire command is divided into a number of phads (groups of contiguous farms where, in a season, only one cropis grown under irrigation) ranging from a few hectares to 50 hectares.


operatives in the late 1980s by NGOs such asthe Pune-based Society for PromotingParticipative Ecosystem Management(SOPPECOM), the Nasik-based Samaj ParivartanKendra, and the Bhusaval-based Sane GurujiShram Seva Kendra (Das, 2001). Partly inreaction to the pressure exerted by these andother NGOs, and partly in response to thewidespread trend of decentralization (includingthe central government’s own encouragementof PIM), the Government of Maharashtra tooka decision to encourage formation of co-operative WUAs for irrigation management in1988.

63 The rationale was to improve water

use efficiency, increase agriculturalproductivity, and reduce work for the IrrigationDepartment (as a result of elimination ofshejpali). The policy of participatorymanagement was also expressed in the 1994Cooperative Water Users’ Association Guidelinesof the Government of Maharashtra. Butbureaucratic hurdles to the setting up of WUAscontinued to exist. A 2001 governmentnotification made WUAs compulsory, and theMMISFA was finally passed in 2005.

Since the 2001 government notification, waterfor irrigation is supposed to be supplied tofarmers only through WUAs, and not to individualbeneficiaries. Even lift irrigation schemes areto be undertaken only by WUAs, and eventuallysanctions to individual schemes of lift irrigationare to be cancelled (GoM, 2005a). The natureof the rights given to the WUAs has alreadybeen discussed in the section on the scope ofthe water rights. Here I will just briefly discussthe overall working of WUAs.

The process of formation of WUAs and actualhanding over of control of irrigation facilitieswill take a long time, partly because thelegislation enabling farmers’ participation inirrigation was put in place only after a lag,

64

and all relevant administrative rules have still

not been changed, and partly because at manylevels of the state bureaucratic apparatus,devolution of powers to farmers continues tobe met with resistance (either because it meansa loss of ‘under-the-table’ income forbureaucrats, or because of continuingskepticism about the ability of farmers tomanage irrigation systems on their own).

As a result, as of August 2003, only 426 WUAswere functioning in major and medium irrigationprojects, covering a cultivated command areaof 1,32,766 hectares (which constitutes 4.5percent of the net area irrigated in 2002-03).

65

Of these, 335 WUAs were under Command AreaDevelopment (CAD) projects. There were alsoanother 1068 WUAs in various stages offormation, of which 573 are for CAD projects.

66

In the case of minor irrigation projects, 31 WUAswere functioning with a cultivable commandarea of 9579 hectares (which constitutes 0.3percent of the net area irrigated in 2002-03),and another 322 were in various stages offormation.

67

There is some evidence that wherever WUAshave been formed and are functional, there isincreased availability of water, improvedreliability of supply, flexibility in cropping pattern,less time and fewer bureaucratic hurdles ingetting water, better maintenance andtherefore less seepage losses, improvedrecovery of water charges, and greater equityin distribution of water within the WUA (Naikand Kalro, 1998). In general, however, studiesof the impact of the formation of WUAs havetypically concentrated more on the effect onefficiency of water use and agriculturalproductivity, and less on considerations ofequity and sustainability. In fact, the officialparameters of the Irrigation Department formonitoring and evaluation of WUAs do not evenmention equity.

68

Further, Pant (1999) points out that the eligibility

63 Note that there was already provision for supply of canal water to associations and volumetric pricing in the MaharashtraIrrigation Act of 1976 (GoM, 1997).

64 The passage of the legislation means that WUAs can be registered with the Irrigation Department (as against the Co-operativeDepartment as was the case earlier), which is expected to considerably speed up and simplify the process.

65 The provisional figure for net area irrigated in 2002-03 is 2,971 thousand hectares (GoM, 2003-04).66 The fact that WUAs dominate in CAD projects, as compared to non-CAD projects, could be at least in part due to the fact that

the former get half their management subsidy from the central government, while the latter get it entirely from the state govern-ment, whose financial position limits the number of projects that can be provided assistance.

67 Data from website of Department of Irrigation Research and Development, Government of Maharashtra:www.dird-pune.org.

68 This is in spite of the fact that both equity in water distribution and economical use of water are mentioned in the objectives ofParticipatory Irrigation Management (GoM, 1994: I (2.1)).


criterion for WUAs itself is problematic. Atpresent, the criterion is that at least 51 percentof the beneficiaries or the owners of 51 percentof the land in the Cultivable Command Area ofa minor can come together to constitute a WUA.This means that a small proportion ofbeneficiaries with large landholdings canestablish a Water Users’ Association, excludingthe majority of marginal, poor farmers. HencePant argues that both the conditions togethershould be made compulsory criteria.

Apart from sectoral decentralization, the otherform that changes in delivery of water havetaken is privatization. So far, this trend hasbeen the strongest in the irrigation sector. Forinstance, in order to accelerate the completionof irrigation projects, the Government ofMaharashtra has established five IrrigationDevelopment Corporations. These corporationsare allowed to raise funds through the openmarket for funding their construction activities.Although the irrigation corporations were setup with considerable fanfare, their working hasnot borne out initial expectations. They alsoconstitute an added financial burden for thestate, since these corporations sometimesreceive budgetary support from theMaharashtra government (such as in the caseof the Maharashtra Krishna Valley DevelopmentCorporation); further, if the promised rate ofreturn on the corporation’s fixed investment(17.5 percent – a rate that is very high forirrigation projects) is not met, the stategovernment has undertaken to meet thedifference out of its own resources (Deshpandeand Narayanamoorthy, 2001).

69

There are also plans to give the managementof minor irrigation tanks on a BOT basis toprivate parties, as well as to establish watercompanies in Solapur and Sangli cities (in thesouthern part of Maharashtra) for distributingdrinking water. Attempts to bring aboutparticipation by the private sector in waterdistribution is also under way in parts of Mumbaiand the suburbs. However, at this point, theprecise form that these would take is not veryclear. In general, while privatization in minorirrigation and in drinking water (especially inurban areas) has not being taken up as seriouslyas in the case of major and medium irrigation,

a critical issue is the lack of transparency aboutthese efforts, or of any attempt to putregulatory mechanisms in place (both essentialconditions for privatization to work effectively,as was discussed in Chapter 3).

Understanding the equity impact of changes inthe delivery of water in the case of major andmedium irrigation is further complicated by thefact that a number of different trends co-existin the arena – privatization in the form of theirrigation development corporations,decentralization (via the formation anddevolution of powers to WUAs) andcentralization (via the provision to set up aRegulatory Body which has no room for PRIs).In fact, the powers given to the RegulatoryBody are extensive (including, among otherthings, distribution of water entitlements fordifferent categories of use, determination ofpriorities in distribution of water at differentlevels – basin, sub-basin, project, andestablishment of water tariffs). As a result,there is the danger that entitlements would befrozen at their current level, which wouldsanction current modes of unsustainable useof water and inequitable distribution, as wellas preclude the possibility of periodic review ofentitlements. It is also interesting to note thatthe MWRRA was modeled on the Maharashtraelectricity bill, although electricity as a resourceis very different from water.

70

Finally, as in the central-level policies andlegislation, the implications of the 73rd andthe 74th amendments have not been clearlyconsidered for delivery of water services, andthe devolution of relevant powers andfunctions to PRIs is still not complete. Theresult is that the division of labor betweenPRIs and different local bodies (set up in thecase of PIM, as well as in drinking waterschemes and watershed development) is notclear; further, in the absence of adequatepowers and capacity-building, neither the PRIsnor the user groups can necessarily carry outtheir functions (WSP, 2004).

5.4.5 Pricing

As in the rest of the country, both drinking andirrigation water have traditionally been cross-

69 This in turn brings into question even the extent to which the irrigation corporations represent a trend towards privatization.70 The last two points were made by Suhas Paranjape (personal communication).


subsidized by industry. While this has notresulted in universal access to water, it hasbeen a contributing factor in costs not beingmet, which, as discussed in Chapter 3, adverselyimpacts how much operation and maintenancecan be undertaken in the case of existingworks, and how much new investment can beundertaken. One major thrust of current reformsin the state therefore has been to increasethe price of water as well as to ensure usercontribution towards capital costs, andoperation and maintenance expenses. Whilethe need for recovery of costs cannot bedenied, the particular manner in which thepricing reforms have been structured hasserious implications for equity.

The case of drinking water, and in particular ofdemand-driven drinking water projects, hasalready been discussed in Chapters 3 and 4.Traditionally, in rural areas, in cases wherepublic sources of drinking water (such ashandpumps) are used, water is supplied free ofcharge and the costs of the infrastructure arealso met by the government. The flip side ofthis is the dependence on government fundswhich may not always be forthcoming; further,issues of quality and accessibility are usuallynot taken into account (WSP, 2004). Theemphasis on demand-driven projects since the1990s (discussed earlier) has meant that peopleare not only expected to pay for the water,but also to bear 10 percent of the capital costand all operation and management expenses.As discussed in the previous two chapters, thisclause could have negative equityconsequences in that people who cannot affordto pay this price would be unable to haveaccess to funds in these projects, and mayhave to turn to more expensive private sources.Further, asking only rural communities to bearthe costs of drinking water schemes, whilecontinuing to subsidize more heavily thedistribution of drinking water to urbanconsumers (given that even operational costsof the huge projects set up in cities are notrecovered) is unfair.

In Maharashtra, urban drinking water rates havenot increased. However, it is important to notethat people’s expenses on water may still haveincreased because of the increasing pressureon water resources, resulting in the use of

alternative sources of water such as privatetankers.

In the case of irrigation, the prime source forthe recovery of capital costs as well asoperation and maintenance costs of irrigationworks was the per-hectare water charge, withdifferent rates being charged for each crop,and also varying by season.

71 As in the rest of

the country, these charges were not sufficientto meet the costs of the irrigation works. Forinstance, the percentage of recovery ofworking expenses through gross receipts inlarge-scale irrigation and multipurpose projectsin Maharashtra was only about 4 percent inthe early 1990s (Deshpande andNarayanamoorthy, 2001). Further, supplyingwater on an area basis also limited the revenueof the irrigation department (apart from leadingto wastage of water).

After the introduction of volumetric pricing in2001, recovery has improved. Further, chargesfor surface water (primarily canal water) havealso been revised a number of times in thelast few years. The proposed hikes under theMWRRA have particularly come in for a lot ofcriticism, as they are likely to result inagriculture becoming unviable for a largenumber of farmers. Although there is the claimthat cross-subsidies could be allowed toalleviate the impact of such charges on thepoor, the exact mechanisms for this have notbeen stated. Further, the MWRRA has alsomade water into a tool for an authoritarianpopulation policy (via the clause that farmerswith more than two children would have topay one and half times the actual rates); sincelow income households tend to have morechildren, the move is likely to have the effectof punishing people for the offence of beingpoor (Sainath, 2005b).

Further, the emphasis on water rates, i.e., onthe revenue side, has not been accompaniedby equal emphasis on the expenditure side,i.e., attempts to cut down unwarrantedexpenditure (such as increasing administrativecosts) (Deshpande and Narayanamoorthy,2001). There is also no charge for groundwater;nor have there been substantial changes inrates for other uses of water and forelectricity.

71 These water charges were assessed by the Irrigation Department and recovered by the Revenue Department.


5.4.6 Right to water and vision ofdevelopment

In line with the National Water Policy, theMaharashtra State Water Policy also lays downsome broad guidelines for dealing with potentialconflicts in the allocation of water. For instance,it allocates first priority to water for domesticuse, by saying that drinking water needs ofhuman beings and animals shall be the firstpriority on any available water. Further,multipurpose projects are required to include adomestic water component wherever there isno alternative and adequate source of drinkingwater. However, as at the central level, theoperational implications of this drinking waterpriority are not evident in actual legislation.Similarly, in the case of agriculture (which,along with hydropower, has been given thirdpriority), there is no attempt to have sub-priorities of water for one crop, two crops, andperennial irrigation.

In general, links between water and othersectors, as well as the kind of developmentgoals that one wants to achieve with water,are not clearly articulated even in the MSWP.While the MSWP does mention as its aims thepromotion of growth, reduction in poverty, andminimization of regional imbalance, it leaves outwater and food security; further, no attempt ismade to link water clearly to any of the broaderdevelopment goals.

72 Similarly, while the

importance of cost recovery has beenmentioned and enabling legislation (such as theMMISFA) has also been put into place for this,what impact an increased cost of water willhave on food prices has not even beenconsidered (Sainath, 2005a).

Another example of the lack of considerationof the linkage of water with other sectors isthat the question of how water use would beaffected by power charges or the agriculturalprice support system, and therefore the needto bring about changes in these realms, ismissing. The importance of doing this is evidentfrom the case of sugarcane cultivation inMaharashtra. Unlike the common perception

that the excessive cultivation of sugarcane isonly because of the low (at least until recently)price of water, studies have shown thatsugarcane’s importance also arises from a biasedagricultural policy and from the link betweenco-operative sugar factories and politicalparties.

73 For instance, the central government

declares a statutory minimum price (SMP)74

forsugarcane, as against the Minimum SupportPrice (MSP) for all other crops (including foodcrops). While there is often no purchasingagency available at the primary market levelto purchase at the announced support pricefor many crops, in the case of sugarcane, sugarmills are statutorily obliged to pay at least theSMP to the cane farmers (Rath and Mitra,1989). Further, following the declaration of theSMP by the central government each year, stategovernments declare a State Advised Price(SAP) which has usually been 20-30 percenthigher than the SMP (except in recent years);many sugar mills pay the SAP rather than theSMP to cane farmers. The SMP and the SAPare not related to the market price of sugar;for example, since 2000, high sugar productionand surplus stocks led to a fall in the price ofsugar, but the central government continuedto declare a higher SMP each year.

75 The result

is a continuing incentive to farmers to growsugarcane, while at the same time increasingthe fiscal burden on governments (which usuallyend up subsidizing the mills in a variety of ways)(GAIN, 2004).

The excessive share of water cornered bysugarcane growers is also made possible bythe pre-eminence of the sugar industry,inclusive of sugarcane farming, in Maharashtra’spolitical economy (Dhanagare, 1992). ‘Granting’canal water to sugarcane cultivators has beenan important tactic used by politicians to buildtheir vote banks.

Finally, the problem of ensuring any degree ofcoordination between policies in differentaspects of water and between water and othersectors is compounded by the complexadministrative division of labor with respect towater. For instance, the Irrigation Department,

72 These points were raised in a presentation by A.Kotasthane of Gomukh at a seminar on ‘Water and Sustainable Development’ atthe Tata Institute of Social Sciences on August 19, 2003.

73 See, for example, Rath and Mitra (1983) on the Pravara Left Bank Canal in Ahmadnagar District of Maharashtra.74 The SMP is usually announced in rupees per quintal for a basic recovery of 8.5 percent, with a premium for every 0.1 percent

increase in recovery.75 Between 1999-00 to 2003-04, SMP rose from Rs.56.10 per quintal to Rs.73 per quintal.


the Rural Development and Water ConservationDepartment, the Zilla Parishad, Water Supplyand Sanitation Department, and the AgricultureDepartment deal with different aspects ofdrinking water and irrigation functions of waterat the state level.

76

5.4.7 Participation

As discussed in Chapters 3 and 4, participationwould ideally include involvement in both policy-making and actual implementation on theground. The presence of strong civil societygroups in the state (both historically and incurrent times) has meant that there has beengreater participation in Maharashtra than inmany other states. But provision for participationor facilitating mechanisms in state policy andlegislation continues to be limited. For instance,although the idea of farmers’ participation hasinfluenced (at least in part) the formation ofWUAs, specific provisions to ensure equity inparticipation do not exist in the governmentguidelines; only procedural aspects of internalfunctioning are mentioned (GoM, 1994).Similarly, in the case of the MSWP, there isprecisely one reference to gender, and thattoo a nominal one: “The women’s participationin the irrigation management should also beconsidered” (GoM, 1994: Section 2.2.2).

But if participation at the micro-level (such asin WUAs) is merely mentioned and notfacilitated, the question of participation in theprocess of irrigation policy-making at higherlevels is not even mentioned in any of the statepolicies or legislation. As a result, even thoughpolicy-making continues to be subject topressures and lobbying from different groups,there are no formal mechanisms to ensure that

all sections of society have a chance toparticipate in the process of policy-making, orthat these inputs are actually taken intoaccount.

The experience of the recent water legislationis interesting in this regard. For instance, inthe case of the Maharashtra State Water Policy(MSWP), not only was the adoption of thepolicy itself a result of considerable lobbyingand pressure applied by individuals andorganizations working in the field of water, butalso three drafts of the policy were open topublic suggestion before the finalization of thedocument, a practice that is highly unusual.The process was, of course, subject to anumber of limitations: for instance, the statewas not duty-bound to actually take intoaccount these suggestions. As a result, thefinal version of the MSWP was retrogressivecompared to the earlier drafts.

77 The two

legislations which were passed three years laterto actually operationalize some aspects of theMSWP – the MMISFA and the MWRRA – hadtwo different kinds of experiences in this regard.In the case of the MMISFA, at least someprocess of public consultation was undertaken.A draft version of the Act was circulated forobtaining the opinion of various NGOs, eventhough, as in the case of the MSWP, thesewere not necessarily accepted.

78

However, the MWRRA was not discussed withanyone initially, though some NGOs likeSOPPECOM tried to push for changes in it evenbefore it was tabled in the legislature in 2004.Sainath (2005c) also points out that theprocess of passage of the bill offers aninteresting lesson on the workings ofparliamentary democracy. When the bill was

76 The Irrigation Department is in charge of medium and major irrigation projects (that is, those having a cultivable command area(CCA) of 2001 to 10,000 hectares and above 10,000 hectares respectively) as well as certain minor irrigation projects (thosewith a cultivable command area between 251 and 2000 hectares). Minor Irrigation Projects having a CCA between 101 to 250hectares are under the control of the Rural Development and Water Conservation Departments, while projects with a CCAbelow 100 hectares are under the administrative control of the District Council, i.e., the Zilla Parishad. Supply of drinking water(both rural and urban) as well as quality control of water is the domain of the Water Supply and Sanitation Department, whichworks with the aid of two technical wings – the Groundwater Supply and Development Agency (GSDA) and the MaharashtraJeevan Pradhikaran (MJP). This department was created in 1996 to concentrate exclusively on poor coverage of drinking waterand access to essential services in rural and urban areas. Rural Water Supply and Sanitation programs are implementedthrough the Reform Support and Management Unit (RSMU) in this department. Water-conserving forms of irrigation (such as dripand sprinkler) come under the purview of the Agriculture Department. Watershed development programs come under the WaterConservation Department.

77 Interview with Seema Kulkarni on June 11, 2004.78 For instance, SOPPECOM suggested modifications with respect to four areas in the MMISFA (i) equity in membership to the WUA

for women, landless, and representatives of the Gram Panchayat (ii) Representation to all the above groups in decision-makingbodies (iii) Water entitlements to women, landless and other deprived sections (iv) Linkage of the WUA to the elected body ofthe panchayats in the redefined area of operation (SOPPECOM, 2003). None of these recommendations were accepted.


first introduced in the Nagpur session of theState Legislative Assembly in 2004, it wassubject to criticism by a CPI-M legislator. Itwas then referred to a joint committee of bothhouses, though not all party members (includingthe one that originally critiqued it) were includedon the committee. The joint committee not onlyapproved the bill, but also made some additionalchanges (like the introduction of theretrogressive two-child norm). The revised billwas re-introduced in the Mumbai session in 2005on the last day and passed by voice vote atthe last minute, so that there was not enoughtime to read, let alone discuss, the bill (Sainath,2005c).

5.5 CONCLUSION

The recent reforms undertaken in the realm ofMaharashtra indicate the influence that central-level policies and legislation have on the states,even though water is technically a statesubject. Further, while the changes inMaharashtra have potential in increasing therights of some groups (like WUAs), the natureof these rights are limited; in fact, they aremore in line with a narrow, tradable permitsversion of water rights.

The Maharashtra case also raises a number ofimportant questions about the working ofrights in water. Firstly, in many cases, thegranting to rights to WUAs (however limited)is a formalization of rights that groups offarmers already had (especially given that theexistence of farmer-managed irrigation systemspredates the process of PIM in the state). Itwould be interesting, therefore, to see whatdifference the process of formalization hasmade (or will make) to the rights of farmers.Secondly, given that one important dimensionof the right to water is participation, not justat the local level, but also at supra-local levels(particularly, in policy-making), and that thisin turn calls for democratization at all levels,what are the implications of simultaneouslyputting in place a highly centralized body withfar-reaching powers (like the RegulatoryAuthority)?

Having considered the conceptualization ofvarious dimensions of the right to water inlegislation at three different levels –international human rights, India, andMaharashtra, I now turn to theconceptualization of the right in another domainviz., civil society initiatives.


CHAPTER 6

CIVIL SOCIETY INITIATIVES ANDRIGHT TO WATER

6.1 INTRODUCTION

The domain of water has seen a wide varietyof civil society initiatives and struggles. Whilethe nature of water (its unbounded nature, itslinkages with social and political power, itsdifferent possible uses) has meant that conflictsand struggles over water have always existed,the trajectory of ‘development’

79 undertaken

since independence has led to these takingparticular forms in the post-independenceperiod (agitations against big dams, strugglesfor rehabilitation, movements for access toirrigation water). Liberalization policiesundertaken since the 1990s have also resultedin new kinds of initiatives such as thoseprotesting the entry of MNCs that over-extractgroundwater, or the handing over of surfacewater bodies or urban delivery systems toprivate operators (whether Indian or foreign).While all struggles have not explicitly used thelanguage of right to water, the idea ofindividuals or groups having claims orentitlements over water (whether for life,health, or livelihood requirements) does formthe basis of many of them.

A comprehensive review of all water initiativesis beyond the scope of this study. Instead,this chapter aims at providing a flavor of thekind of initiatives being undertaken in water,including differences in the actors involved,the particular dimensions of water that theydeal with, and the strategies that they adopt.Since the discourse of rights forms animportant part of this study, I will brieflyconsider the form that movements dealing withrights (or rather with one particular form ofrights viz., human rights) have taken in India.I then discuss civil society initiatives in waterin India, focusing on two cases in particular –the anti-Coke struggles at Plachimada in Keralaand the agitations against the privatization ofthe Sheonath river in Chhattisgarh. Finally, I

turn to civil society initiatives in water inMaharashtra.

6.2 HUMAN RIGHTS MOVEMENTS ININDIA

India has seen an active civil society and awide number of social movements. However, therange of issues taken up, the actors involved,and the tools used have varied across regionsas well as changed over time. For instance,since the 1980s, social movements haveincreasingly begun to focus their struggles notonly around issues of class and nationhood, butalso around issues of gender, ethnicity, caste,and regional identity (Parajuli, 1991). Further,at least some of these new social movements(as they have come to be called) have engagedwith alternative visions of development, unlikethe old or classic social movements which tookas their model of development the industrialsociety of the West (Omvedt, 1994).

In the specific context of human rights, NCAS(2004) identifies four trajectories of movementsin the country – civil and political rights, social,economic and cultural rights, rights of themarginalized (such as women, Dalits, andAdivasis), and the right to transparent andaccountable governance. Although thesetrajectories are interconnected, they werepromoted by different sets of actors (often withvarying ideological affiliation) at different pointsin time. Particularly interesting is the fact thatthe same tension between civil and politicalrights, on the one hand, and social, economic,and cultural rights, on the other hand, which isfound in the human rights discourse at theinternational level (discussed in Chapter 2) wasalso found for a long time in the human rightsmovements in India (and is still present to someextent). For instance, liberal advocates whopromoted civil liberties saw the struggles of left-oriented groups for workers’ and peasants’ rights

79 Here I use the term ‘development’ in a very broad sense, as including not only a particular vision of economic development, butalso a specific set of values and norms.


as a ‘political’ activity of radicals external totheir movement, while the left groups perceivedhuman rights as a Western idea used to glossover socio-economic inequalities and to legitimizethe capitalistic and imperialistic project of theWest (Mohanty, 1998). It was in the emergencyperiod, when there was widespread violation ofmany civil and political rights, that theimportance of such rights first began to beappreciated across the political spectrum.

The post-emergency period has also seen anincreasing focus on social and economic rightsof the poor, of ethnic and religious minorities,of women and children, as well as on newerrights such as environmental rights and theright to development (Dutta, 1998). A widerange of reasons contributed to this wideningfocus, such as a greater interaction of Indianactivists with international human rightsorganizations, and an increasing realizationabout the limitations of a welfarist approachthat did not question the socio-politicalconditions and structural inequalities thatperpetuate deprivation (Dutta, 1998).

The result is that today, the dichotomybetween the two sets of rights is increasinglybeing questioned, resulting in greater alliancesacross movements (Mohanty, 1998). Thuslinkages between different groups have beenmade in movements such as the NationalAlliance for People’s Movements (a broad-basedalliance of a number of social movements andorganizations active at different levels and indifferent parts of the country) (Sheth, 2004).In fact, the post-1990s period has particularlyseen an increased number of such alliances,because groups working separately on differentissues such as gender, ecology, human rights,or education are now conceiving their activitiesas a form of social and political action aimed atcountering hegemonic power structures at alllevels, and are therefore coming together oncommon platforms on the issue of liberalizationand globalization (Sheth 2004).

Linkages across different movements has led,among other things, to new tools and strategiesfor change such as judicial activism (discussedin Chapter 4), or of the application of old toolsto new issues. Thus groups working on social,economic, and cultural issues have also begunto draw on the fundamental rights and directiveprinciples of the Indian constitution to pressurizethe state for change (NCAS, 2004). For instance,

the campaign for right to education resulted inthe 86

th amendment to the Indian constitution

that guarantees the right to education as afundamental right under the right to life andpersonal liberty (Article 21); attempts have alsobeen made to put in place a legislation toimplement the right, and a Right to Educationbill is currently pending in Parliament. Thisexample is particularly important in the contextof water, because, as the discussion in Chapter4 shows, the right to water has also beenderived by the Indian judiciary under the samefundamental right i.e., right to life.

But alliances across movements (both acrossdifferent kinds of human rights movements, andbetween human rights movements and thoseworking on other issues) are still insufficient.In part, this is because a lot of mobilization inIndia is identity-based, and people’s awarenessis limited to their own specific economic andpolitical conditions (Baxi, 1998). Further, justas the link between right to water and thevision of development is not sufficiently madein the human rights discourse and in statelegislation, the human rights movement in Indiaalso does not sufficiently engage with thediscourse of development. This is in spite ofthe fact that at least some of the movementsare a reaction to the ill-effects of developmentprojects (such as big dams, forestry projects,and mining companies) (Baxi, 1998). Civilsociety initiatives in water, on the other hand,have engaged to a far greater extent with thequestion of development, albeit not always ascritically as they should. It is to a discussionof these that I now turn.

6.3 CIVIL SOCIETY INITIATIVES INWATER IN INDIA

There have been a variety of civil societyinitiatives dealing with the problems of accessto, use of, and pollution of water. Thesestruggles vary with respect to the issuesconsidered, ideology, number and kinds ofactors involved, and the tools used.

Perhaps the greatest variation is found in therange of issues considered in water initiatives.They could deal with basic water needs (drinkingand household needs) or with water forlivelihoods (agriculture, fishing, and so on). Theycould be an immediate response todevelopmental activities that are insensitive tothe natural environment or problematic in other


respects like the mode of water development(a polluting industry, a big dam), linked toquestion of identities (along linguistic, caste,religious, or ethnic lines) and/or stem fromparticular notions of social justice and equity.

Among all these categories, the largest numberof initiatives (and also the most visible) havebeen the struggles against multipurpose rivervalley projects that emerged in the 1970s – forinstance, against Tehri on the river Bhageerathiin the Himalayas, Silent Valley in Kerala, KoelKaro in Bihar, and Sardar Sarovar in the west –on a variety of economic, ecological, andenvironmental considerations (Gadgil and Guha,1994). The other set of struggles that has beenreasonably prominent is that of farmers forirrigation water, such as in the SouthMaharashtra case. Struggles dealing with thequestion of identities and social justice (suchas the Mahad movement linking access to waterto caste status or the Pani Panchayat initiativein Western Maharashtra aiming to de-link landand water rights) have been far more localized.The question of drinking water (especially whenits scarcity is a regular feature) is the one thathas drawn the least attention, except whenthere is some other trigger factor. This is trueespecially in rural areas, where struggles fordrinking water have often been small-scale andepisodic, and very rarely have people in differentareas joined hands and formed a movement.There could be a number of reasons for this.One is that those who do not have even drinkingwater are often the very poor who are not ableto participate in movements. In the context ofrural Maharashtra, Rao (1996) points out how itwas difficult for her to find struggles of ruralwomen for drinking water mainly because it ismore difficult for women to rally against a landlordor a village-head. They either just devise copingstrategies; or even when they do protest vianon-typical methods (á la Scott, 1985), theseare both less visible and do not inscribethemselves in communal memory in the same

manner as more vocal, explicit forms of protestwould. The second reason could have to dowith the way the media works; just as deathdue to famines finds greater coverage than deathdue to malnutrition, droughts find more coveragethan regular scarcity of water (Sainath, 1996).

The post-liberalized era has also given rise toa different set of issues around which waterstruggles are based. One example is thestruggles for water in urban areas, which aremainly reactions to attempts by the governmentto ‘privatize’ water and which focus on issuesof ownership, delivery, and pricing (albeit oftenwithout adequate conceptual clarity on theseissues). In Delhi, for instance, resident welfareassociations of different housing colonies andNGOs such as Parivartan joined hands to protestagainst perceived attempts at waterprivatization, forcing the government towithdraw the request for a World Bank loan.Note that at stake here was not just thehanding over of particular water deliveryservices to private firms, but also a lack oftransparency in the whole process, favoritismfor specific private sector firms, and ananticipated rise in tariffs without guarantee ofimprovement in services (Jain, 2005).

Water struggles also differ in their ideologicalpositions and the strategies that they use. Likeother environmental struggles in India, waterinitiatives employ a combination of strategiesthat span the ideological spectrum ofenvironmentalism.

80 In the realm of water, for

instance, critics of big dams employ argumentschallenging the wisdom of large, capital-intensive projects and calling for the use ofappropriate technology. At the same time, theyraise the issue of population displacement andquestions about the social distribution of costsand benefits, implicitly drawing upon anecological Marxist understanding of the natureof development. The use of decentralized andnon-violent collective action stems from aGandhian tradition. The specific tools used draw

80 A useful classification of the ideological streams in environmental movements in India is given by Gadgil and Guha (1994). Theydiscuss three ideological streams: Crusading Gandhian, Appropriate Technology, and Ecological Marxism. The ‘CrusadingGandhian’ stream upholds the pre-capitalist and pre-colonial village community as an ideal of social and ecological harmony. Itemphasizes the moral imperative of checking overuse of resources, moving away from a materialist, consumerist lifestyle, anddoing justice to the poor. The ‘Ecological Marxism’ stream holds that it is unequal access to resources that is responsible forenvironmental degradation. To remedy this, political change must come first, for which collective action aimed at transformationof unequal relations is critical. The ‘Appropriate Technology’ stream falls between the two, with a practical emphasis onconstructive work, i.e., actually demonstrating socio-technical alternatives to environmentally degrading technologies. Thisstrand is also influenced by socialist principles – for instance, in its ambivalence about religion, and in its criticism of traditionalsocial hierarchies.


from three broad sets of strategies used in theenvironmental movement in India – resistanceto the state, consciousness building, andreconstruction

81 (Gadgil and Guha, 1994). Of

these, the most controversial is the first, withdifferences of opinion around whether thereshould be engagement with the state at all,and the form that this should take. While toolsof advocacy and lobbying are being increasinglyused in the realm of water to influence statelaw and policy, the results of this are not alwayspositive, as the discussion in this chapter willshow. Strategic alliances have also sometimesbeen made between different groups (as in thecase of the movement for rehabilitation of damoustees and the movement for equitabledistribution of water in existing dams in SouthMaharashtra).

In terms of the actors involved in thesestruggles, the anti-dam movements have beenmass-based (and therefore presumably involvinga wide range of classes), while irrigationstruggles have often involved big and mediumfarmers (unless there is a strong equitycomponent to it, as in the case of the SouthMaharashtra movement). Those dealing withquestions of identity or social justice, by theirvery nature, involve groups that are thetraditionally marginalized in society. Animportant feature of the new, post-liberalization struggles in urban areas is theinvolvement of the middle class, a class that isusually apathetic in terms of undertaking anypolitical action; however, what effect theirparticipation will have on questions of equity(for instance, access to water for slum-dwellers) is not clear at this point.

It is also important to note that all the fourfeatures of initiatives in water – their ideology,issues, actors, and strategies – could changeover time (both within a particular struggle aswell as across all struggles), either in responseto the changes in the water sector and tobroader developmental changes, or for strategicreasons. For instance, over time, the focus ofthe Narmada Bachao Andolan has changed fromcritiquing big dams and the current development

paradigm to pushing for adequate rehabilitation(Menon, 2006).

Finally, civil society initiatives in water (with afew exceptions) are reactive rather than pro-active, a critique that has been leveled againstthe environmental movement in general in Indiaand the world.

82 On the whole, though, these

initiatives do raise a wider range of concerns(both related to water and otherwise) thanthe human rights discourse or state policiesand legislation. In particular, questions aboutthe kind of development process that shouldbe set in motion and the obligations of thestate as well as non-state actors are broughtmore explicitly to the forefront. This will bemore evident in the discussion of the twospecific cases below.

6.3.1 Anti-Coke struggles at Plachimada inKerala

The anti-Coke struggles at Plachimada in Keralaexemplify the complexities involved in the issueof ‘right to water’ in recent times – thejurisprudence of groundwater, the role of thejudiciary in deriving a right to water in existingconstitutional law, the real and perceivedconflicts between objectives of growth, equity,and sustainability, the question of how muchpower PRIs really have even in a decentralizedset-up, and how civil society initiatives shouldengage with the state.

Let me first start with a brief summary of thecase.

83 In March 2000, a bottling unit of

Hindustan Coca-Cola Beverages Ltd. (an Indianarm of Coca-Cola) started operations inPlachimada village in Palakkad district in thenorthern part of Kerala. It was originallywelcomed as it provided some employment aswell as income to the Panchayat by way oftaxes. But this changed with increasing watershortages in the region. In April 2003, thePerumatty Gram Panchayat (which hasjurisdiction over Plachimada village) did notrenew the license of the bottling unit of HCBLbecause it felt that the company was causinga shortage of drinking water and irrigation waterin the area, as well as contamination of well

81 The strategy of reconstruction basically refers to restoration of degraded ecosystems (afforestation programs, soil and waterconservation programs, and so on).

82 For instance, Krishna (1996) argues that the success of the environmental movement continues to be limited to stoppingparticular projects and refining environmental regulations.

83 The summary is based on discussion in a number of sources (Anonymous, 2004; Anonymous, 2005a; ENS, 2005; Iyer, 2005b;Krishna Kumar, 2004a; b; Krishna Kumar, 2005; Lakshmikutty, 2005; Narain, 2004).


water, through over-exploitation of groundwatersources. Further, the sludge that the companywas ‘gifting’ the villages as good fertilizer turnedout to be toxic. The Panchayat’s decision wasinitially stayed by the government, followingwhich the Panchayat filed a writ petition in theHigh Court. In response to this writ petition,the Kerala High Court passed a landmarkjudgment in December 2003.

The court held that the state is the trustee ofgroundwater and that it is duty-bound toprevent its overuse; its inaction in this regardwould be tantamount to infringement of theright to life guaranteed under Article 21 of theConstitution of India. The High Court alsorecommended that the company did not haveunrestrained rights over groundwater; instead,it could only draw groundwater equivalent tothe quantity normally used for irrigating cropsin a land area the size of the company’s plot,an amount to be determined by the Panchayatand the Groundwater Department. The responseof the court to the writ petition was challengedby the company. Subsequently, a division benchof the High Court appointed a multi-agencyexpert committee to ascertain whether thecurrent level of exploitation of groundwater bythe company was indeed the reason for thescarcity of water experienced in the region.Following a preliminary report in the court inFebruary 2004, the state cabinet served a fourmonth ban on the drawing of groundwater toHCBL (i.e., until the onset of the south-westmonsoon in June). Both the High Court decisionand the ban on HCBL were seen as majorvictories for the anti-Coke movement atPlachimada.

However, both positions were reversed whenthe final report was submitted in March 2005.In April 2005, HCBL was permitted by a DivisionBench of the Kerala High Court to resumeproduction at Plachimada, drawing groundwaterup to five lakh liters per day

84 during 2005-06

(without any right of accumulation in case ofnon-use any day) from the 34 acres premisesof its bottling plant. The only caveat was thatthe company should actively involve itself incommunity development programs of thePanchayat, especially in the matter of health

and water supply, and hence a reasonableamount of water drawn should be utilized forthe benefit of the public. The justificationoffered by the court was that the drying up ofordinary wells was not a phenomenon specificto Plachimada, and that shortage of rainfallwas a contributory factor. The report on whichthe High Court judgment is based has beencritiqued on a number of grounds such asincomplete estimation of water usage/demand,faulty calculation of rainfall trends andconsequent water availability, and lack ofattention to the question of groundwaterquality (Venugopal and Suchitra, 2005).However, these issues were not raised by anyof the parties concerned in the case.

But even more important than the reversal ofthe ban were the rulings made by the Aprilorder about the role of panchayats and rightsover groundwater. With regard to the former,the court held that the Permumatty GramPanchayat was not justified in rejecting theapplication for renewal of the license before ascientific assessment of the groundwaterpotential had been made, nor could it enquireabout the details of the machinery installed,borewells, and so on, as such matters fall withinthe jurisdiction of the enforcement officer underthe Factories Act. The April order also pointedout problems with the December order givingthe Panchayat the right to fix the quantity ofwater that the company may be permitted todraw. This was on the grounds that no reasonwas provided for giving agriculture more prioritythan an industrial activity, and the fact thatdifferences in agricultural needs from crop tocrop was not taken into account. In fact, theApril order also mentioned the need to fullyutilize developmental opportunities that onlyindustrial establishments could create in an areathat is otherwise predominantly agrarian.

In the context of groundwater, the April orderruled that any person could extractgroundwater from his property, unless it isprohibited by a statute, and that if restrictionson extraction of groundwater are to apply tolegal persons (companies), they may also haveto apply to natural persons (individuals). Further,even the mandatory function of a panchayat

84 The figure of five lakh liters was arrived at by a team of experts of the Central Water Resources Development and Management(CWRDM) by taking into account the average rainfall in the locality. This is supposed to be the amount that could be withdrawnwithout affecting both domestic and irrigation water requirements under normal rainfall conditions.


under the PRI Act viz., maintaining traditionaldrinking water sources, could not prevent awell owner from extracting water from his wellas he wished i.e., could not deny the proprietaryrights of the occupier of land.

The Perumatty Gram Panchayat has sinceappealed to the Supreme Court for revocationof the High Court order, calling into questionthe rights of a gram panchayat to drinking waterand for agricultural purposes in contrast to theright of a multinational company to extractwater. The case is still pending. In themeanwhile, the Kerala government has notifiedthe land on which the bottling plant is locatedunder the Kerala Groundwater (Control andRegulation) Act, 2002 to regulate the use ofgroundwater in times of scarcity. This meantthat the area and its water resources weredeclared as ‘over-exploited’, and that thecompany would have to get further clearancesin order to continue to draw groundwater. Themost recent development is that the PerumattyGram Panchayat has issued a fresh license toHCBL for three months, imposing 17 conditions,in order to comply with a High Court order(Anonymous, 2006b). Coca-Cola has acceptedthe license under protest.

With this brief summary, I now turn to theimplications of the case for the concept of rightto water.

85

Firstly, the idea of ‘right to water’ is explicitlyused in the agitation. The focus is to a largeextent on drinking water rights of the poor(including questions of quality of water), butthe idea of water for livelihoods (in particular,for agriculture) has also been brought up.However, while drinking water and agricultureneeds are posited against the needs ofindustry, the relation between drinking waterneeds and agriculture needs (including fordifferent kinds of crops) could also beconflictual, a point which has received lessattention.

Secondly, an important part of the strategyinvolved in the agitation is positing the‘community’ against the ‘multinational’. Such adichotomy is clearly useful for strategicpurposes; for instance, the struggle atPlachimada can be a part of anti-globalization

struggles at the national and international level.In fact, the movement has already drawnconsiderable international support, with manycommunities in the US, the UK, and othercountries refusing to do business with Coca-Cola until it meets the demands of theprotesters in India. However, this strategy alsoraises a number of questions. Firstly, class andpower differences within the community arenot very clearly articulated. Secondly, whilethe Plachimada case has received considerableattention because it involves over-extractionof water by an MNC, over-extraction ofgroundwater by Indian private operators(operators of tankers in urban areas forinstance), has received far lesser attention.

Thirdly, at stake in the Plachimada struggle isalso the question of what development entails,especially in the context of a state like Keralawhere recent years have seen attempts topromote economic growth and higheremployment opportunities. In this context, itis interesting to see the view that the HighCourt takes in the April 2005 judgment, whereit implicitly supports a path of development thatnecessarily entails the establishment ofindustries, even if the environmental costs ofthese industries are high (and distributedinequitably across different groups).

Fourthly, the two contrary judgments of theKerala High Court once again bring out thelacunae in laws pertaining to ownership ofgroundwater. The first judgment was a landmarkbecause it brought up the idea of the state asa public trustee of groundwater. While thesecond judgment was problematic in that itjust re-enforced the de facto link between landand water, it also raised important concernssuch as the lack of effective legislation andthe need to impose restrictions on groundwaterextraction by companies as well as individuals(Upadhyay, 2005b), with the caveat that onewould need to recognize the differentialeconomic status and power positions of thetwo entities. Another related point is the lackof any discussion of pricing of groundwater.

Fifthly, the second court order brings intoquestion the whole process of decentralizationand democratization. There are a number of

85 Note that the following discussion is not meant to detract from the contributions of the Plachimada struggle; the idea is to bringout the different dimensions and varying motivations involved.


inter-related points here. One is the questionof who should be deciding what is ‘reasonable’extraction, and how to balance ecologicalquestions with what different groups of peoplewant, a role which the high court seems tohave taken onto itself, but which could also bethe mandate of PRIs or other democraticallyelected bodies (Upadhyay, 2005b). The secondis the power of higher courts to overrule thedecision of an elected Panchayat, especiallywhen there is some legal basis (via the 73rdand 74th amendments) for it to take decisionsabout a drinking water resource.

Sixthly, Upadhyay (2005b) also argues that thePlachimada case raises questions about bringingbattles into the legal arena indiscriminately, asjudicial decisions could supplant those takenby elected bodies. He contrasts the Kerala casewith the case of Kaladera in Rajasthan, wherethe resolution of a Panchayat in June 2005against another Coca-Cola bottling plant wasapproved by a specially convened Jan Adalat(People’s Court) also comprising senior lawyersand a retired justice.

86

6.3.2 Agitations against the privatization ofthe river Sheonath

One of the lacunae in legislation with regard toownership of surface water is lack of clarityabout whether the state owns surface wateror merely has user/control rights over it. Thisquestion becomes important in the light ofrecent efforts by the state to lease out surfacebodies to private entities. The case which hasdrawn the most attention in this context is theprivatization of the river Sheonath inChhattisgarh.

87

In 1998, an Indian company, Radius Water Ltd.,entered into a BOOT (Build-Operate-Own-Transfer) agreement with the Madhya Pradeshgovernment in 1998, whereby it would lease ina part of the River Sheonath for a period of 22years. This was the first case of riverprivatization in India. When the state ofChhattisgarh (consisting of some areas inthe eastern part of Madhya Pradesh) was

constituted in November 2000, the riverSheonath became a part of the newly formedstate. According to the contract inherited bythe Chhattisgarh government from the MadhyaPradesh government, Radius was allowed todevelop water sources (through constructionof up to three barrages) over about 23kilometers of the Sheonath river for supply ofwater – between 4 million liters per day to amaximum of 30 million liters per day – to existingand expected industries in the Borai IndustrialGrowth Centre in Durg District. With arequirement of 3.6 mld, Hindustan ElectroGraphites was, and is, the only major consumerof water in Borai. Further, a take-or-pay clausein the contract stipulates that the ChhattisgarhState Industrial Development Corporation(CSIDS) would have to pay Radius for a minimumof 120 million liters per month regardless ofwhether or not the water was consumed. Underthis clause, CSIDC had to pay Rs.290.81 lakhto Radius between December 2000 and June2002.

Further, the company did not allow villagers touse water from the river for irrigation, or evenfor their own personal needs. Downstreamcommunities were particularly affected. Fishingactivities were also adversely impacted becausethe company had blocked all access to fishinggrounds over a half-kilometer stretch of theriver.

The Forum for Fact-Finding Documentation andAdvocacy, a civil society organization based inthe Chhattisgarh capital Raipur, filed a PIL inthe state’s high court, challenging theprivatization of the river on the grounds that ithad adversely affected the livelihoods of localfishermen, and irrigation and drinking watersupplies in the area. The agreement wasdeemed to violate the fundamental right to lifeand livelihood guaranteed under Article 21 ofthe Constitution of India, as well as Article 47(right to proper nutrition) and 48A (protectionand improvement of environment andsafeguarding of forests and wildlife), which areDirective Principles of State Policy.

86 In Kaladera and adjoining villages near Jaipur in Rajasthan, farmers hold the Coca-Cola bottling plant (established in 1999)primarily responsible for declining ground water levels in the region, and the resultant harm to local agriculture as well asreduced water for personal consumption. Coca-Cola gets the water free except for a small cess that it pays to the government.While there are other factors that have also led to the decline in groundwater in the area (more water-intensive agriculture,water-guzzling industries like beer units), the situation is believed to have worsened since the Coca-Cola plant was set up(Adve, 2004).

87 The discussion of this case is based on Jayaraman (2005).


Finally, in response to protests by villagers andcivil society agents, the Borai scheme wascancelled by the Chhattisgarh government.However, there have since been other instancesin the state where parts of rivers were leasedout or handed over to industries for their privateuse. These include the Kharn river (Nico Jaiswalgroup), the Sagari river (S R Group), Indravatiriver (Tata group) and Kelu river (Jindal Group)(Mumtaz et al., 2005).

Two broad sets of issues are raised by theChhattisgarh case. The first is whether thestate has the right to enter into an agreementof this kind, especially without including anyprovisions to safeguard the interests of existingusers. If one considers the state as a publictrustee, the answer to this question is clearlyno. The second issue is once again about thepath of development that one wants toundertake, and whether industries should beencouraged when their establishment is onterms that primarily benefit the industrialconcern itself.

6.4 CIVIL SOCIETY INITIATIVES INWATER IN MAHARASHTRA

Civil society initiatives in Maharashtra considera wide range of issues relating to differentdimensions of a right to water. On the basis ofthe issues that they deal with, these initiativescan be classified into five broad categories ofwater: those dealing with the mode ofdevelopment, those concerned with questionsof equity in distribution of water, thoseconcerned with sustainable use of water,initiatives trying to link the dimensions ofgender and access to water, and initiativesthat are primarily a response to the changesintroduced in the water sector by the state inthe post-liberalization era. These initiativeshave had varying degrees of success: someof them (like the South Maharashtramovement) have become mass movements,others (like the Pani Panchayat experimentsand the experiments in sustainable farming)have not spread beyond few locales.Nevertheless, at least the fact that suchattempts have been made is important.

The initiatives have also used a wide varietyof strategies. The movement for equity in water

(especially in the context of dams) has placedconsiderable emphasis on mass mobilizationand consciousness-raising in various forums.For instance, the struggles about the Bali RajaMemorial Dam have involved demonstrationsto raise public consciousness, campaigns withvarious left organizations in the district, anduniversity seminars to discuss the principlesof the movement and the course of action tobe followed (Omvedt, 2000). At the same time,there have also been dharnas

88 and fasts to

protest state inaction or wrong action, as wellas reconstruction work. In the case of thevillage-level water projects emphasized asalternatives to dams (be they the watershedprogram of Ralegan Siddhi or the lift irrigationschemes of Pani Panchayat), reconstructionwas the dominant strategy, although there wassome engagement with the state, as well asmobilization (at least at the level of thevillage). In general, both reconstruction andconsciousness building are accepted asimportant by all. The more controversialstrategy is engagement with the state, therebeing considerable differences of opinion aboutthe ideal mode and extent of suchengagement. Some put all responsibility onlocal groups and consequently see no role forthe state, while others seek to lobbyextensively with the state.

I now trace out the trajectory of the variousinitiatives in water in Maharashtra, and brieflydescribe the issues that they have focused on.

As in the rest of the country, the mostimportant form of irrigation development inMaharashtra until the 1970s was large andmedium dams. The rehabilitation of peopledisplaced by the dams was inadequate andraised questions about the social distributionof costs and benefits of such projects. Thisprovided the plank for the first set of strugglesin the realm of water. A major impact of thesestruggles was the passage of the MaharashtraRehabilitation of the Project Affected Act of1978; among other things, the Act providesfor more land in the command area for marginalfarmers, and for thirteen civic amenities –ranging from water supply to schools andcremation grounds – for resettled villagers(Phadke, 2004).

88 A dharna is a form of protest to obtain redress for a wrong, usually by stopping work at a particular site.


Along with the problem of rehabilitation ofdam oustees, large-scale surface irrigationworks also came in for criticism on othergrounds such as the inappropriate technology(for instance, use of capital-intensivetechnology in a labor-intensive society) usedand the lack of attention paid to localecological factors. While some of the peopleinvolved in the struggles against big damswere against all dams, others held that itwas possible to construct dams with moreappropriate technology that would not havethe same negative impacts in terms ofdisplacement or adverse effects on theenvironment. For instance, the MuktiSangharsh movement in SouthernMaharashtra, a broad platform of left-wingactivists founded after the 1982-83 textilestr ike in Bombay, spearheaded theconstruction of the Bali Raja Memorial Dam inthe villages of Balawadi and Tandulwadi inSangli district. The dam is a small, peasant-built one, constructed using local resources,and it did not lead to any problems ofdisplacement (Thukral and Sakate, 1992).

An important feature of the struggles of MuktiSangharsh and others working with them hasbeen the rejection of one of the most commondichotomies in water discourse today – thatbetween ‘big dam’ developmentalism and anti-dam eco-romanticism (Omvedt, 2000;SOPPECOM, 2002). Their argument is that whilethe planning and performance of the formerleaves much to be desired, the latter aims topreserve ‘the environment’ at the expense ofthe livelihood needs of farmers. Further, smalldams are not enough to satisfy all livelihoodneeds in a reliable fashion (even ifsupplemented by local watersheddevelopment), and hence large dams cannotbe totally rejected.

89 This argument is

particularly true in drought-prone areas whichget less than 500 mm of rainfall a year.

In contrast to those advocating a pragmaticapproach to large dams (and all large-scalewater development), others have been moreconcerned with alternative modes of waterdevelopment, such as water harvesting,

especially at the village level. Perhaps thebest-known example in this regard is AnnaHazare’s Ralegan Siddhi, where watersheddevelopment led to a variety of socio-economicchanges.

If debates about the mode of waterdevelopment form the focus of one set ofstruggles in water in Maharashtra, a secondset of struggles relates to distribution ofirrigation water (including questioning of thelink between access to water and access toland).

The movement for equitable distribution of wateris mainly concentrated in southern and westernMaharashtra. Its genesis can be traced to thePani Panchayat experiments of VilasraoSalunkhe. Following the 1971-72 drought inMaharashtra and the ineffectiveness of the adhoc relief measures undertaken, Salunkhestarted his experiments in Purandhar taluka ofPune district in Maharashtra. Theseexperiments, which primarily involved liftirrigation schemes, aimed to de-link rights overwater from rights over land and to restrict theamount of water per beneficiary in order toensure that all members of the community inquestion (including the landless) would benefit.The idea was to reduce intra-communityinequalities by promoting a more equitabledistribution of water resources.

90

Pani Panchayat provided inspiration for principlesof equity to be applied in other contexts, suchas the Bali Raja dam in Balawadi and Tandulwadi,the watershed program in Ralegan Siddhi, andthe Water Users’ Association at Khudawadi.However, the main attempts at replication aswell as engagement with the state to providelegal backing for equitable water distributionhave taken place in the context of dam water.For over a decade now, drought-affectedpeasants (organized under an umbrella of leftorganizations such as the ShetmajoorKashtakari Shetkari Sanghatana, the ShramikMukti Dal and Mukti Sangharsh Chalwal) inthirteen talukas of four districts in Maharashtrahave been demanding the right to equitabledistribution of water from the dams in the region

89 This view has led them to take a more pragmatic approach, even in the case of the construction of the Narmada dam (especiallyin recent years, when the construction of the dam has become a fait accompli), and to focus on lobbying for changes intechnical design that will ensure greater equity (Interview with K. J. Joy, a member of SOPPECOM, on July 25, 2001).

90 Interview with Vilasrao Salunkhe, the founder of Pani Panchayat, on July 24, 2001.


for every agricultural family, including thelandless (Phadke, 2004).

91

Of all the struggles in Maharashtra, it is thisone that has used the language of rights (andright to water) most explicitly. Hence it is usefulto briefly consider what this right encompasses(with the caveat that it is put forth in thecontext of canal water in rural areas).

92 Firstly,

there is a clear distinction between basic needsand economic needs, with water for basic needsbeing free, but water for economic needs beingcharged. Water for satisfying basic needs(drinking, domestic needs, cattle, andagriculture) is seen as a right; following thePani Panchayat principles, this includes waterfor three acres per household, which isconsidered the minimum necessary to satisfybasic needs. Thus the conceptualization of rightto water includes water for at least minimallivelihood requirements. Secondly, there hasbeen a fair amount of engagement with thequestion of the unit to which water rights shouldbe assigned (for instance, the idea that landlesshouseholds should also be included). Thirdly,the responsibility of granting the right is clearlyput on the state, even though there is animportant role for civil society groups and localpeople both in lobbying for changes in statepolicy and in ensuring effective implementation.Fourthly, there is questioning of at least someaspects of the mainstream developmentparadigm (for instance, the idea of drought asa natural phenomenon and the excessive useof inputs – including water – in agriculturalcultivation).

Equity in a different context, that of conjunctiveuse of water, was addressed in the case ofOzher village of Nashik district in WesternMaharashtra. Farmers there were alreadygetting water from a nearby canal when anNGO called Samaj Parivartan Kendra set up aWUA and also got the Maharashtra Soil andWater Conservation Department to construct

a series of check dams on the nallahs in thecommand area of the canal. These check damsstored both the rain water as well as the canalseepage water (or the water remaining in thecanals after usage in each round). As a result,water level in the wells in the vicinity increased.Since the increase was due to a publicinvestment (in canals and check dams), thewell owners agreed to share part of theincreased water with neighboring farmers whohad no wells, as well as to pay the WUA afixed charge for using water from the wells thathad benefited from the recharge (Paranjape etal., 1998).

93 This case raised the important

question of payment for conjunctive use ofwater.

A third set of struggles in Maharashtra hasfocused on the question of sustainable use ofwater. In the case of surface water, forinstance, experiments were conducted in twovillages of South Maharashtra (Balawadi andBenapur) in 1986-91 to show how organicinputs and mixed cropping patterns can improveproductivity of land even with limited waterapplication (Paranjape et al., 1998). Theseexperiments were fairly successful, butwidespread replication remains to beundertaken. A few attempts have also beenmade to undertake sustainable practices withregard to the use of groundwater, including inRalegan Siddhi, Pani Panchayat, and HivreBazar (where a watershed developmentscheme was implemented in the mid-1990s).These have tried to limit withdrawals byrestricting either the kind of crops that canbe grown or the kind of technology that canbe used (no borewells, greater use of drip andsprinkler irrigation). Since groundwaterdevelopment and use take place privately, theadoption of such measures is mainly dependenton local initiative, and there have been nowidespread attempts at changes in this regard.However, they do serve to bring out theimportance of raising the question of use of

91 The most recent manifestation of this struggle (called the Thiyya Andolan) was a sit-in by about 7,000 peasants from thedrought- and dam-affected areas of Sangli, Satara, Solapur, and Kolhapur districts in Pune in January 2004, following thesevere droughts in 2002 and 2003. The main demands of the Thiyya Andolan were: (i) allocation of funds to the tune of Rs.30billion for eradication of drought; (ii) change in the priority allocation of water from industry to agriculture; (iii) equitable distribu-tion of water in proportion to the population; and (iv) allocation of funds to the tune of Rs.5 billion for rehabilitation of the dam-affected. These demands were partially conceded on the second day, after which the sit-in was withdrawn (Phadke, 2004).As of June 2004, however, most of these demands had not been actually met (Interview with Seema Kulkarni, one of the co-ordinators of the sit-in, on June 11, 2004).

92 The discussion of the features of the right is based on an interview with K. J. Joy, a member of SOPPECOM, on July 25, 2001.93 Farmers in Ozher also use drip irrigation for cultivation of grapes, the major crop taken up for cultivation after the increased

availability of water.


water in conjunction with demands for betteraccess to water.

The fourth set of initiatives in Maharashtra triesto link the question of gender and access towater. In the mid-1990s, in a village calledKhudawadi in Osmanabad district in SouthernMaharashtra, the Pune-based SOPPECOM wasinvolved in setting up a Water Users’Association, in the course of which they enteredinto a bargain with water users to give a partof their water entitlement from the canal tolandless women. The women would use thewater on fallow lands belonging to privateowners, and a scheme was then worked out toshare the produce of these lands between thelandless women and the landowners. Theexperiment itself did not succeed, except formeeting the fuel and fodder needs of the womenfor a few years (SOPPECOM, n.d.). However, itraises a number of important points for suchstruggles. Firstly, it shows that at least in thecontext of satisfying livelihood needs, right towater alone is not sufficient, and needs to beaccompanied by access to land and credit.Secondly, it helps to re-enforce the idea ofright to water as a basic right (independent ofland ownership). Currently, SOPPECOM is alsoworking to improve the access of ‘desertedwomen’ to resources such as water.

A fifth set of struggles focuses on the changesin the water sector introduced by thegovernment in recent years. These struggles

are conducted at two levels. One is lobbyingthe state for changes in policies and legislation.For instance, in the context of attempts togive small tanks on a BOT basis to privateparties (by passing a Government Resolutionto this effect), Mukti Sangharsh is fighting toensure that these tanks are given to co-operatives or village communities instead, withthe government contributing money for building.Further, as discussed in Chapter 5, civil societygroups have also played an important role ingetting the draft bills of the MMISFA and theMSWP into the public domain. The second levelat which struggles are conducted is in actuallydisseminating information and raisingconsciousness about the implications of thenew policies.

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6.5 CONCLUSION

The discussion of civil society initiatives in waterprovide a glimpse of the complexities involvedin struggles dealing with any aspect of ‘rightto water’. These initiatives have engaged withmore dimensions of the right than the humanrights discourse and state legislation. Forinstance, the idea of water for livelihoods andthe relation between water and developmenthas been an important part of at least some ofthese struggles. But more importantly, the useof rights language and efforts to engage withthe state indicate the potential for synergiesbetween different domains.

94 Interview with Seema Kulkarni, a member of SOPPECOM, on June 11, 2004.


CHAPTER 7

CONCLUSION

7.1 INTRODUCTION

The preceding chapters have traced thejourney of a right to water across a number ofdiscourses. From the human rights discourseat the international level to legislation at thelevel of India and Maharashtra, and then ontocivil society initiatives in India and Maharashtraagain, the right to water either deals withdifferent dimensions, or with the samedimension in a different manner. For instance,the human rights discourse often focuses onlegal aspects, without taking into account thesocial and cultural context of the practice ofthe right at local levels, or of power relations inother realms at the international level whichcould impact the right (such as in GATSnegotiations). Similarly, the human rightsdiscourse and state legislation do not reallyengage with issues of development, therebyimplicitly subscribing to the standard paradigmof development, while many civil societyinitiatives critically question at least someaspects of mainstream development. In thisconcluding chapter, it would be useful to goback to the four aims put forth in the firstchapter (bringing about greater conceptualclarity in the way the term ‘rights’ is used, layingout the contours of a right to water, showinghow state policy in India and Maharashtrasupports these different aspects of the right towater, and discussing how civil society initiativesengage with these dimensions), to see whatinsights emerge with respect to each of them,and indicate possible ways ahead.

7.2 MEANING OF RIGHTS

The theoretical discussion of rights in generaland the right to water in particular in Chapters2 and 3 respectively, and the working of rightsin the domains of human rights, statelegislation, and civil society initiatives inChapters 4 through 6, indicates that engagingwith the concept is useful for a number ofreasons, although one also needs to exercisesome caution in doing so.

What does engagement with the concept ofrights have to offer? Firstly, the link betweenparticular versions of rights and the idea ofcapabilities means that rights can help bringquestions of equity and social justice to theforefront. This is true even though a lot morework needs to be done to understand theoperational implications of a rights-basedapproach (whether it is having fulfillment ofcapabilities as a standard or the idea of rightas an endowment), particularly in the contextof a complex resource like water. Secondly, thedebates that are found in different versions ofrights, be it human rights or rights-basedapproaches or the right to development (therelative importance of legal versus non-legalaspects, the role of the state, the implicationsof power inequalities at various levels) arerelevant to issues of water too. For instance,the human rights discourse raises the questionof how one could make the concept of right towater meet certain minimum standards (whichwould call for a certain degree of universality),while at the same time allowing for contextualspecificity. Similarly, the tensions between civiland political rights on the one hand, andeconomic, social, and cultural rights on theother hand, which is found not only in the humanrights discourse at the international level, butalso in the human rights movement in India(although less pronounced in recent times), hasimplications for how one should view a right towater (as derived from the right to life or rightto health, or as an independent right). Thirdly,rights could be a useful strategic instrument,especially in negotiations with governments anddonors. The fact that the World Bank discourseon water rights influenced state legislation inMaharashtra on Participatory IrrigationManagement (PIM), can be viewed as a matterof both concern (in the power that oneinternational lending institution has) and hope(that other international discourses, like theone on rights, could also potentially be madeas powerful).

However, one must also bear in mind the pitfalls


of using over-simplified versions of rights. Inthis regard, the experience of community-basednatural resource management, which gainedprominence in part because of strategic usesof the idea of an idealistic version of‘community’, but is since struggling to makethe concept more nuanced (Agrawal andGibson, 2001), should serve as a caution.Another example is the concept of right todevelopment, which was prominent in the 1980s,but which is now near absent or present onlyin a highly sanitized, non-political version. Thereis thus the danger that like other concepts inthe development discourse (empowerment,basic needs, social capital, and so on), rightsalso run the risk of being co-opted into a neo-liberal agenda, or in agendas that do notexplicitly focus on equity.

One way of increasing the likelihood that theconcept of rights plays a useful role in thecontext of water is perhaps to ensure greaterclarity in what having a rights-based approachin water would entail. This brings me to thesecond aim of this review – to bring aboutgreater conceptual clarity in at least one sub-part of an RBA in water viz., the concept of a‘right to water’.

7.3 DIMENSIONS OF A RIGHT TOWATER

One of the lessons that emerges from thediscussion of rights is that one needs to guardagainst universalistic notions of a right to water,and instead try to situate it in a particularcontext. At the same time, it is important todelineate the contours of such a right i.e., thedifferent dimensions that it would have to dealwith. The discussion in Chapter 3, where theissues at stake in each of these dimensionsare laid out, as well as the discussion inChapters 4 to 6, where how these differentdimensions work in the realms of human rights,state legislation, and civil society initiatives isbrought out, show that the right to water isfar more complex than just simply access toadequate and safe water.

For instance, one important issue in the contextof a right to water is the gender dimension ofthe unit to which water rights are assigned.However, in any given context, the decision ofwhether to try and push for water rights forwomen would depend not just on practicalfeasibility and what needs to be done to deal

with the existing water problem, but also onwhether access to water would be the bestmeans of empowering women in a meaningfulsense, and what women themselves want atthat point. The important point is that thereshould be awareness of different possibleoptions and their implications, as well as flexibility(both in legislation as well as in civil societyinitiatives) to pursue whatever is deemed bestunder the circumstances. The question ofwhether particular entities (landless households,slum-dwellers) have access to water alsoinvolves fulfillment of (and ability to prove)particular eligibility criteria (whether it is tenancystatus in rural areas or domicile status in urbanareas). While such inter-connections increasethe complexities involved in extending the classof right-holders, they also open up possibilitiesfor linking up struggles. Thus struggles to formallyrecognize slums can link with struggles to providebasic amenities (including water) to all.

But perhaps the most important outcome ofdiscussing different dimensions of a right towater is that it could result in greaterconceptual clarity in the goal that one is strivingfor. For instance, polarities between marketremedies, pricing of water, and privatization onthe one hand and goals about social justice onthe other hand might be useful strategically(for instance, for mobilization in a movementsuch as the one in Plachimada). But they alsolead to confusion, as when any attempt atprivatization (including of a very specific waterdelivery service) is seen as privatization of theresource itself and therefore calling forresistance, instead of trying to understand theprecise terms of the privatization contract andthen deciding if that is the best way toundertake reforms in the delivery of water inthat particular context.

Engaging with different dimensions of a rightto water also highlights the fact that the linkbetween the right to water and developmentis critical. This is particularly true given thatwater not only has multiplier effects in anyeconomy, but is also tied in with social andpolitical power. Hence recognizing the conflictsbetween different uses and users of water, asalso of the vision of development underlyingwater policies, is important because withoutthis, existing power inequities are likely to bere-enforced or further aggravated.

Finally, it is important to note that each of the


dimensions of water has implications forefficiency, equity, and sustainability. While ithas not been possible in this study to considerthe implications of different dimensions for allthree goals, it is important to keep in mindthat the three goals, as also the differentdimensions, are inter-connected, which in turnopens up the space for linking different,apparently unconnected, struggles.

Another dimension of a right to water that hasnot been discussed in this study, but isimportant, is the relation between technologyand right to water. There are two inter-relatedpoints here. The first point is that the choiceof technology is likely to make a big differenceto how the goals of efficiency, equity, andsustainability are attained, and therefore howthe right to water works out in any given case.Hence explicitly engaging with the kind oftechnology being used is important. But thisrarely happens. For instance, in the context ofEnvironmental Impact Assessment (EIA), thetype of technology being installed is neverconsidered an important parameter. The resultis that clearances are given even to industrieswhere water consumption is far above the globalbest practices (Anonymous, 2005b). The secondreason why the link between technology andright to water is important is because embeddedin technology itself are assumptions aboutdevelopment.

7.4 STATE LEGISLATION AND RIGHTTO WATER

While there is some recognition of right to waterin international human rights as well as in theIndian constitution, at the level of statelegislation and policies in India, differentdimensions of right to water do not get muchsupport. This is true even in cases likeMaharashtra, where a particular version of rights(viz., entitlements to water) has been putforward in the context of PIM, but is limited ona variety of fronts. What is a matter of concernis that even an active civil society has not alwayssucceeded in shaping legislation in desireddirections, even though it has succeeded inbringing about micro-level changes.

However, not engaging with legislation is alsonot an option. As the discussion in thepreceding chapters indicates, along withconstitutional rights, rights granted via policiesand legislation could be one, if not the only,

instrument that could be used by differentagents in their struggles around water. Further,the law also performs the function of regulatingpeople’s attitudes, because over time, peopleinternalize it. Hence there is definitely a needfor further changes in legislation. A number ofpoints are important in this regard.

Firstly, the discussion in Chapter 5 shows howthe right to water in India has been interpretedby the judiciary under the right to life in theconstitution. However, the nature of the right– whether it is a negative right or a positiveright, what it implies about the relationshipbetween development and the environment –is not clear. One form that legal reform wouldhave to take is (a) to decide whether the rightto water needs to be formalized as anindependent right, or whether the currentinterpretation under the right to life is sufficientand (b) clarify what the right implies for thedifferent dimensions reviewed in this study.Note that having a clear constitutional provisionis important even if the right to water isincorporated in ‘ordinary’ legislation or found injudicial applications; as Gavison (2004) argues,a constitutional right to water would constitute“entrenched legislation”, which has a specialstatus and is less subject to change. Singh(1992) also argues in favor of expandingconstitutional law (as against rectifying existingstatutory law) because it gives more lastingsolutions.

The second point that is important from thepoint of view of legal changes is one that Singh(1991) (cited in Saleth, 1996) makes withregard to water law reform in general, but whichwould apply to the idea of right to water too.Singh argues that just passing an act to besuperimposed on the existing legal domaingoverning water resources is not sufficient;reform would be needed in central and statelaws, rules, orders, ordinances, customary laws,and court decisions pertaining to water, i.e., acombination of constitutional, criminal, civil, andcustomary law. Thus changes would be neededin the Easement Act, Irrigation laws, Panchayatand Municipal Corporation laws (Singh 1992);they would also have to cover domains suchas flood-plain zoning, pollution control, waterquality, and groundwater regulation. Further,changes are not just required with respect tothe legal regime in water, but also with respectto other related aspects. For instance, lawsregarding land use and ownership are important,


because they are closely linked with water,sometimes formally through riparian rights, andland owners can affect water through land usechanges such as reforestation (TAC, 2000).Similarly, an effective Right to Information Actis important to get information (like the precisenature of privatization contracts) that wouldotherwise be inaccessible to the vast majorityof people.

While the task of legal reform might seemdaunting, a potential starting point is asuggestion that Bluemel (2004) makes in thespecific context of a riparian regime, but whichis more broadly applicable – to explicitlyincorporate the public trust doctrine in theexisting systems of rights. This would beespecially useful in the short run, while theimpact of a right on everything ranging fromwater user charges, irrigation acts toenvironmental and agricultural regulations isbeing worked upon. As discussed in Chapter 3,the idea behind a public trust framework is thatthe state, as a trustee, would have regulatorycontrol over water while people, as membersof the trust, would have usufructuary rightsover its use. Saleth (1996) and UNESCO-WWAP(2006) argue that such a system could fit therequirements of efficiency, equity, andsustainability; state trusteeship would allowsocial control over the amount of and themanner in which water is to be distributed andutilized (leading to ecological security and socialequity in water use) and private user rightswould allow transferability (leading to economicefficiency and resource conservation). Whilethe idea of private, transferable user rights isproblematic on a number of grounds (as thediscussion in Chapter 3 indicates), the idea ofa certain degree of state control (albeitconstrained by the condition of functioning forthe public interest) could be a useful one.

Along with legal reform, it is also necessary toput in place institutional mechanisms that caneffectively decide how various dimensions ofthe right to water are to work in differentcontexts as well as give these institutions thenecessary backing. Institutional issues are whatbroadly comes under the heading ofgovernance,

95 on which there has been a lot

of emphasis in recent times (see, for instance,

Mehta, 2004; Ahmed, 2005a). This question ofinstitutional issues was discussed explicitly orimplicitly as part of the different dimensions ofthe right to water. But two points are worthemphasizing. Firstly, just as legal reform needsto encompass a whole range of water andwater-related legislation, institutional reformalso includes a wide range of issues whichincludes machinery for resolution of inter-statedisputes, grievance redress mechanisms in thecontext of large projects, creating institutionalmechanisms to reduce non-revenue water andwastage, facilitating conservation, tacklingcorruption, and building the capacity of localgovernment and local municipalities (both interms of knowledge and finance) (Mehta, 2004).Secondly, as discussed in Chapter 4,particularly in the Indian context, clarifyingrelations between institutions is critical.

7.5 CIVIL SOCIETY INITIATIVES ANDRIGHT TO WATER

The discussion of civil society initiatives in waterin Chapter 6 indicates that these initiativesemphasize a different set of dimensions thanstate legislation or the human rights discourse.For instance, the anti-Coke struggles atPlachimada in Kerala raise important questionsabout the ownership of groundwater, the use ofjudicial activism, the limits of political devolution,the (perceived) conflicts between developmentand environmental protection, and conflictsbetween different uses of water. The initiativesalso bring forth the inter-connectedness ofdifferent dimensions of the right to water, andtherefore the possibility (and need) for networksand alliances across different groups. Oneexample of this is the alliance between the dam-rehabilitation struggles in Maharashtra (whichdeal with the socio-economic impact of aparticular mode of water development) and theequity in water struggles (which are concernedwith the question of who has access to canalwater, and how much, and the price to be paidfor this).

The manner in which at least some civil societyinitiatives use the language of rights also offersproof of both the potential and problems of therights discourse. The fact that it has been usedin mobilizing people as well for engagement with

95 GWP defines governance as a “…range of political, social, economic and administrative systems that are in place to developand manage water resources, and the delivery of water services, at different levels of society (TAC, 2000).


the state is one indication of the potential forsynergies across different domains. But thelimitations of such use are evident by the factthat there is often lack of clarity about whatthe right exactly entails, and actual impact onstate and global institutions continues to belimited.

The discussion in the preceding chapters alsoindicates two possible routes that future civilsociety initiatives can take. One is that thereshould be more attempts to influence theinternational discourses on water, not just therights discourse (or the right to water), butalso the other three discourses (the Dublin-Rioprinciples, the World Bank-ADB discourse onwater markets, and the idea of Integrated WaterResources Management). This could seem likean esoteric concern, but the importance ofdoing this is exemplified by the South Africancase. Although South Africa has a right to waterexplicitly mentioned in the constitution as wellas legislation that actually enables such a rightto be implemented, there are still problems inthe working of the right to water. But this isnot so much due of lack of effectiveimplementation, as due to other internationaldiscourses around water playing a moreinfluential role and adversely affecting theworking of the right on the ground.

Such an attempt could take a number ofdifferent forms. For instance, it could involvepressurizing international donors into NOTimposing private participation as a conditionfor aid (Mehta, 2004). It could also involveconstant monitoring of GATS and bilateralinvestment treaties which seek to open watermarkets (particularly in urban areas) to foreigninvestment and competition.

Secondly, even as critically questioning existingdiscourses around water and development isimportant, it is crucial to simultaneously engagein “critical reconstruction”, especially at themicro-level (Langford, 2005). For instance, oneneeds to develop alternative public andcommunity models to manage water delivery,like the examples mentioned in Chapter 3.

Finally, it is useful to add a cautionary note onthe role of civil society agents. As Mohanty(1998) argues, civil society could not only bea liberating idea, but also act as a “legitimizing

ideology of a coercive state” (p. 16). Hencejust as an active civil society could act as acheck on the state, checks are needed amongdifferent kinds of civil society actors too. Evenin the case of those interventions whoseideology is more in tune with a liberating idea,it would be useful to keep in mind Sethi (1998)’swarning against the tendency “to load ex-antemacro expectations” on phenomena (actors/activities/organizations) that cannot bear theburden.

7.6 CONCLUSION

This study started with the aim of reviewingrights discourses in the context of water (andmore specifically, the concept of a right towater), drawing on discussions in the domainsof human rights, state legislation, and civilsociety initiatives. Given the constraints of themethodology used, the scope of the study isnecessarily limited. In this concluding section,I would like to indicate four broad areas ofstudy which one would need to engage with inorder to take the work done in this reviewfurther.

96

Inextricably bound with the concept of rightsis the concept of law. Hence engaging withthe question of law as a conceptual categorybecomes critical. A number of different viewsof law have been put forth. For instance,Dhawan (1989) discusses (i) the ‘black letterlaw’ tradition, which interprets law as arelatively autonomous reality which is distinctfrom questions of morality (ii) an instrumentalview of law (where law either fulfills the interestsof the more powerful groups in society or isused to meet goals of redistributive justice)and (iii) law as an integral part of capitalism(either as an instrument to promote capitalistdevelopment or a natural spin-off resultant fromit). Embedded in these different concepts arealso particular views of development. Further,how law is used as well as how one interpretsdeviations from law is related to the particularview of law that one holds. For instance, socialmovements could use law as a resource in theirstruggle for social change, or they could focuson changing law as an outcome of their struggle.Law could be used to generate consent as wellas to structure modes of resistance. Thesequestions in turn have implications for the

96 The following discussion draws on comments made by Ajit Menon on an earlier draft of this report.


potential of a right to water and of rights-based approaches. The concept of legalpluralism (briefly discussed in Chapter 2) alsohas implications for whether law is consideredas an institution central to social order, or it isonly one among multiple institutionalarrangements and normative repertoires insociety (Spiertz, 2000).

The second area in which more work is neededis the concept of citizenship and its linkagewith water (as well as other social, economic,and cultural rights). This review indicates howon the one hand, the idea of citizenship as acondition for enjoyment of rights has beenproblematized and on the other hand, themodes of citizenship are also being increasinglynarrowed down. Delving deeper into theseaspects in the specific context of water isessential because, as Menon (1998) argues,citizenship is inextricably bound with theconcepts of rights and justice, particularly inmodern democracies, since justice is oftenensured by the winning, granting, andprotection of rights that are held by citizens.

The third area is the conceptualization of thestate by different actors and of one particulararm of the state viz., the judiciary. Judicialjudgments in cases such as the Plachimadacase discussed in this review as well as otherslike Narmada and the inter-linking of rivers notonly bring into question the use of PILs andjudicial activism, but also broader questions ofthe role of the judiciary in general. For instance,Dhawan (1989) points out that the work ofthe judiciary is both constitutive of ideologyand conceptive, in that it determines themanner and framework within which valuepreferences and public policy are discussed.

The fourth area of possible study is the actualworking of rights discourses on the ground. Thiswould imply drawing from actor-orientedapproaches and legal anthropology; this, in turn,would ensure that agency and people’s dailyexperience regarding the normative environmentwith all its ambiguity, variation, andcontradiction becomes the arena in which onestudies rights (Spiertz, 2000). This is importantfor a number of reasons. Firstly, the discourseof rights is related to wider questions ofdevelopment. For instance, the concept of rightto water has become a crucial symbolic issue

in the protest against globalization as a whole.Understanding how rights are constructed andused in any given context would need morecase studies of rights and water. Secondly,water management practices and rules are alsoembedded in and constituted by existing socialand political relations and hierarchies, culturalvalues, patterns and criteria of legitimacy, andlocally specific ecological conditions (Boelensand Zwarteveen, 2005). Thus the rights thatan individual claims would depend on theparticular institutions they have access to,that is, the political context determines howcompeting rights claims are arbitrated at alocal level. At the same time, the focus onagency should not detract from the fact thatthe discourse of rights is socially constructed,so that questions of structure and agency alsobecome important. As Pettit and Wheeler(2005:1) argue, “the process of making rightsis a political one, rather than a technical orprocedural one, because it entails confrontingthe structural inequalities that underlie thenegation of rights. Understanding how rightscan shift power relations is essential torealizing the potential of rights to contributeto change.”

The above four areas indicate not onlysuggestions for future work, but also theshortcomings of this one. However, the hope isthat by reviewing three discourses – humanrights, state legislation, and civil societyinitiatives – in one place, this study helps atleast partially in indicating how bridges could bebuilt between different actors and in openingup new spaces for intervention. Rights in general,and human rights in particular, may seem tooabstract on the surface; further, what happensat the local level is determined by such a widevariety of factors that having an internationalor even national human right to water may seemto be of little consequence. But the study bringsout the fact that international/nationaldiscourses do influence what happens at thelocal level. However, perhaps the most importantthing that a rights-based approach (and a rightto water) has to offer is the immediacy of socialjustice or equity concerns. Equity is notsomething that should (or can) be brought aboutat some later stage (after growth, afterdevelopment), but is something that needs tobe undertaken ex-ante.


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